With the Compliments of
YALE UNIVERSITY LIBRARY
NEW HAVEN. CONN.. U. S. A.
published under the direction of the
Department of History
From the Income of
THE FREDERICK JOHN KINGSBURY
THE HISTORY OF LEGISLATIVE
METHODS IN THE PERIOD
RALPH VOLNEY HARLOW, Ph.D.
Instructor in History
NEW HAVEN: YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
By Yale University Press
First published, October, 1917
THE FREDERICK JOHN KINGSBURY
MEMORIAL PUBLICATION FUND
The present volume is the sixth work published by the
Yale University Press on the Frederick John Kingsbury
Memorial Publication Fund. This foundation was estab-
lished August 3, 1912, by gifts to Yale University from
Alice E. and Edith Davies Kingsbury, in memory of
their father, Frederick John Kingsbury, LL.D., who was
born in Waterbury, Connecticut, January 1, 1823, and
died at Litchfield, Connecticut, September 30, 1910.
Mr. Kingsbury was a graduate of Yale College in the
Class of 1846, and an Alumni Fellow of the Yale
Corporation from 1881 to 1899. The income of the
Foundation is used *'to promote the knowledge of
American history and to associate the name of Frederick
John Kingsbury with this study at Yale. ' '
V. B. P.
It is the purpose of this work to trace the growth of
the committee systems in the lawmaking bodies of the
colonies and states from about 1750 to 1790, and in the
federal House of Representatives from the beginning to
1825. During these years the committee form of organ-
ization was so firmly established that it has become the
distinguishing feature of the American legislature. In
view of this fact it seemed to be worth while to put in
accessible form the more important steps in that early
development. Matters of procedure are touched upon
only in so far as they throw light on the main theme.
In the processes of legislation it is difficult to separate
completely the operations of the regular committees from
the activities of the party caucus, and the following
chapters discuss both types of organization, the formal,
provided for by the rules, and the informal, supplied by
the political party. An attempt is made to show how the
colonial legislatures were directed by party leaders, how
the caucus and the executive influenced the work of the
federal House, and also how certain arrangements made
primarily to facilitate legislation have affected some of
the larger aspects of constitutional history.
This study was undertaken at the suggestion of
Professor Allen Johnson, of Yale University, and the
material in Chapters I to VII, inclusive, with the excep-
tion of a part of Chapter II, was worked out in the form
of a doctoral dissertation under his direction in 1913.
The writer is very glad to acknowledge his indebtedness
to him for helpful advice and criticism at that time.
Those chapters have subsequently been largely rewritten,
and the last six are entirely new. The writer also wishes
to take this opportunity to express his grateful appre-
ciation to Professor Charles M. Andrews, of Yale
University, both for his suggestions while the work was
in progress, and for reading and criticising the whole
manuscript before it went to press. It is also a pleasure
to thank the officials and attendants at various libraries,
particularly those of Yale and Harvard Universities, the
Massachusetts Historical Society, the State Library of
Massachusetts, and the American Antiquarian Society,
for their assistance in the search for material.
R. V. H.
December 21, 1916.
Chapter I. Standing Committees in the Colo
nial Legislatures, 1750-1775 .
Chapter II. Party Organization in the Legis
Chapter III. The ''Junto" in New York and
North Carolina .....
Chapter IV. Committee Development, 1776
Chapter V. Committees on Legislation, and
the Committee on Public Bills in North
Chapter VI. The Committee of the Whole
Chapter VII. Committee Procedure
Chapter VIII. The First Congress .
Chapter IX. Republicanism in the House, 1792
Chapter X. The Jeffersonian Regime .
Chapter XL Madison and Congress
Chapter XII. The Growth of the Standing Com
mittee System .....
Chapter XIII. Committees, Cabinet, and Party 237
Bibliographical Note . . . . . 257
Appendix; Lists of Standing Committees . . 259
Index ........ 263
STANDING COMMITTEES IN THE COLONIAL
By 1760 a change little short of revolutionary had
taken place in the colonial assembly. In the beginning,
when the settlements were small, it had apparently been
looked upon as a sort of borough corporation, vested
with authority over local matters of secondary impor-
tance. In England it was still so regarded at the time
of the Revolution. On that side of the water there was
no appreciation of the fact that the growth of the
assembly had kept pace with the increase in population,
so that the representatives of the voters had formed the
habit of dealing with almost every kind of colonial
problem. This development had been fostered by British
ignorance of or lack of interest in American affairs, and
after several decades the colonists naturally assumed
that privileges and powers which they had gradually
acquired were theirs by prescriptive right. Certain it
is that by the end of the Seven Years ' War these Ameri-
can assemblies were claiming for themselves authority
in all colonial matters corresponding to that exercised
by the House of Commons in England. After they
obtained control of colonial finance, they were able to
subject the governors to their rule, and thus they made
themselves the mainspring in the whole political mechan-
ism. That by cooperating with the governor they could
make his administration an unqualified success, the
careers of such men as Shirley clearly prove ; by oppos-
2 DEVELOPMENT OF LAWMAKING
ing him, they could completely ruin the most carefully
prepared executive plans.
This consciousness of power, derived from actual
achievements in the past, made the assemblies somewhat
independent at best, and extraordinarily obstreperous
and disagreeable at the worst. Members who won
prominence were aggressive, self-confident politicians,
whose frontier spirit made them contemptuous of admin-
istrators sent over from England. Between the points
of view of the two groups, royal officials and colonial
assemblymen, there was a gulf as wide as the ocean.
When differences arose between them, as they inevitably
did, the leaders in the house soon showed that they knew
how to organize their forces in the most effective way
for the defense of their claims.
Whatever names they may have adopted, House of
Burgesses, House of Representatives, or Commons
House of Assembly, from New Hampshire to Georgia
these colonial assemblies were all very much alike in
external features and general structure. Each had a
lower house, representing the voters, and an upper
chamber representing British authority, proprietary or
king. They had similar officers : speaker, clerk, sergeant-
at-arms, and doorkeepers; with few exceptions their
procedure in passing bills was similar. More important
still, they all transacted about the same kind of business.
They kept in touch with the agent in England, super-
vised the treasurer and his accounts, had general over-
sight of both raising and appropriating money, and made
laws for the colony. They differed chiefly in size, and
in the degree of complexity of their internal structure.
The question of size is not particularly important, but
the types of organization worked out in the various
assemblies are not unworthy of attention, partly because
of their possible influence on the federal Congress, but
STANDING COMMITTEES 3
more especially because they reveal the true source of
In the case of these early bodies, as in Congress itself,
it is essential to remember that there were generally to
be found two different types of organization : the formal
committee system on the one hand, and the party machine
on the other; of these, the latter was infinitely the more
At the present time, the most obvious and fundamental
difference between the British House of Commons and
the American House of Representatives is the promi-
nence of the standing committee system in the latter
body. And yet, in spite of this fact, as Dr. Jameson has
shown, the standing committee did not originate in local
colonial assemblies, but in the British House of Com-
mons.^ The institution first came into use in Parliament,
near the close of the sixteenth century. Its subsequent
decline and disappearance as an active factor in legis-
lative work there was probably due to the rise of the
Cabinet. At the very time when the institution was
becoming important in America, it had practically died
out in the House of Commons, so the assumption that it
was of strictly American origin was natural.
Standing committees were used in the House of Com-
mons as early as 1571; in that year a group of election
cases was referred to a single committee, and two
others were also appointed, one on grievances, and
another on religion.^ In 1592 there appeared a genuine
standing committee of the modern American type, on
privileges and elections. This was appointed to '^ exam-
ine and make report of all such Cases touching the
1 Jameson, ' ' Origin of the Standing Committee System, ' ' in Pol. Sc.
Quarterly, 1894, pp. 246-247,
2 Commons Journal, I, 83, April 6 and 7, 1571. "At the same time,
another Committee was nominated, to consider of those griefs and Peti-
tions ..." etc. D'Ewes, 157, 159; Jameson, 248.
4 DEVELOPMENT OF LAWMAKING
Elections and Returns of any of the Knights, Burgesses
and Barons of this House, and also all such Cases for
priviledge as in any wise may occur or fall out during
all the same sessions of Parliament."^ This committee
soon came to be a regular factor in the organization of
the House, so that when the motion for its appointment
was made in 1603, the clerk could add : ' ' This is an usual
Motion in the Beginning of every Parliament."* For
several decades questions relating to privileges and
returns were customarily referred to this committee.^
The committee on privileges remained a standing
committee, but a peculiar custom developed in the case
of the committees on religion and grievances. Instead
of referring matters of this kind to committees of a few
members, the House would set aside certain days when
they might be taken up in committee of the whole. In
1625, for instance, there were standing committees on
privileges and on religion; then, orders were given to
th^ effect that on every Tuesday there should be a ses-
sion of the committee of the whole House for courts of
justice; on Wednesday and Friday for grievances, and
on Thursday for trade.® Three years later, however, a
3 D 'Ewes, 471, February 26, 1592 ; Jameson, 251.
* Commons Journal, I, 149, March 22, 1603.
5 These questions related to election returns, contested elections, and in
general to all matters which concerned the special privileges of members.
A member 's servants were also clothed with some of their master 's dignity,
and any affront to them might be taken up by the House. An amusing
instance of this kind occurred in 1603, and was actually referred to the
committee on privileges. The clerk's dignified account of the affair is worth
quoting. "Complaint was made of certain Pages, who, disorderly and
violently, upon the Parliament-stairs, had taken a Cloak from one Eichard
Brocke, a young Youth, Servant to a Member of the House, and carried
it to the Sign of the Sun, a Tavern, in Westminster; and the Owner follow-
ing them, and demanding his Cloak, they offered it to the Vintner 's Servant
for such Wines as they called for; and, when the Eeckoning was brought in,
they left it in lieu of Payment; and the Vintner's Man by Force kept it
from the O'wner. " Commons Journal, I, 152, March 24, 1603.
6 Commons Journal, I, 817, 818, February 9 and 10, 1625. These were
known as "Grand Committees," while the regular standing committee on
STANDING COMMITTEES 5
day was appointed for a grand committee on religion,
and with that change the system was given its final form.
There was first, a standing committee on privileges, and
then there were the four grand committees, or com-
mittees of the whole House, on religion, courts of
justice, grievances, and trade/
In form, this system lasted until 1832, but it fell into
disuse long before that date. In the first session after
the Reform Bill of 1832 went into effect, the customary
motion to appoint them was made as usual, but it was
opposed by some of the members on the ground that
these grand committees were ''a complete dead letter."
A Mr. Littleton said that he had spent considerable time
in looking over the journals, and he could discover only
one instance in which the committee on religion had been
used since the Long Parliament. A few days later the
discussion was continued, and, as the record stands in
Hansard, "The Order for the Appointment of the
Standing Committees was then negatived." Such was
the end of the grand committees, which had hitherto
been regularly appointed since 1628.^
This committee system then was in active use in
Parliament during the seventeenth century, the very
time when American legislatures were taking shape. If,
in search of precedent and example, the colonists exam-
ined the Journals of the House of Commons at all, they
could not help becoming familiar with the practice of
referring certain matters to standing committees. The
conception of such an institution, evolved in England
in the course of centuries of parliamentary experience,
privileges was called a ' ' select committee, ' ' because it was composed of only
a part of the members of the House. In modern parlance the term "select
committee" is applied to those committees appointed for a single piece of
7 Commons Journal, 1, 873, March 20, 1628.
8 Par?. Debates, 3d Series, Vol. 15, especially pp. 229-230, 627; February
6, 13, 1833.
6 DEVELOPMENT OF LAWMAKING
was thus placed at the disposal of these frontier
legislatures at the very beginning of their career.
In spite of their common origin, American legislatures
differed widely in respect of their internal structure.
Their committee systems ranged all the way from a
practically exact imitation of the one just described,
through more or less extensive variations of it, to one
having no trace of parliamentary precedent. There is
no doubt that committee development in both New York
and Virginia was directly influenced by English prac-
tices, while that in the House of Representatives of
Massachusetts reveals not a trace of English influence.
The reason for this divergence may be sought, in part
at least, in the nature of the connection, or lack of it,
between the colonies and England.
It has been frequently pointed out that the relations
between Virginia and the other middle and southern
colonies and England were much more intimate than in
the case of the northern colonies. The agricultural
products of the South were for the most part shipped to
England, and the planters always kept up a regular
correspondence with their agents at home. Then, too,
it was not unusual for the aristocratic southerners to
send their sons to English universities, where they
became thoroughly familiar with English customs. Nat-
urally when some members of the assemblies had been
educated in England they would be inclined to follow
British precedents in legislative affairs. It is also
reported that in some cases the clerks in the assemblies
were Englishmen, who, because of experience in Parlia-
ment, were intimately acquainted with procedure in that
In New England, on the other hand, connection with
the mother country was slight. The settlement there had
been made primarily to secure more freedom, and the
STANDING COMMITTEES 7
descendants of the Puritan colonists had never formed
the habit of looking to England for guidance in any-
thing. It has been well said that New England repre-
sented the very "dissidence of dissent." This spirit of
separatism, brought out so clearly in the difficulties with
Charles the Second and Sir Edmund Andros, is well
illustrated by an anecdote — which may or may not be
true — of 1689. It is said that when plans were being
made in Boston for celebrating the accession of William
and Mary, it was decided not to fly the English flag in
honor of the occasion, for the very simple reason that
not a single one could be found. Then, too, trade rela-
tions bound New England more closely to the West
Indies than to the home market, so the economic con-
nection, so prominent in the South, was missing. Legis-
lators in New England, therefore, did not have the
opportunity to become familiar with procedure in the
House of Commons. These points are mentioned, not
as adequate explanations of the differences that will be
pointed out in detail below, but as material facts having
more or less bearing on the case. They may account for
differences in the legislative customs of Massachusetts
and Virginia, but they do not tell why there was so little
trace of the English committee system in South Carolina
The best instance of deliberate adoption of the com-
mittee system of Parliament is to be found in the Assem-
bly of New York. At the beginning of a new Assembly,
just as at the opening of a new Parliament, days were
regularly set apart for the meeting of "Grand Com-
mittees" for grievances, courts of justice, and trade.
Then a standing committee of privileges and elections
would be appointed, in accordance with English prece-
dent. The legislature of New York may have considered
itself so pious that no grand committee for religion was
8 DEVELOPMENT OF LAWMAKING
needed, or so far beyond hope that one would be use-
less; certain it is that none was provided for. The
Assembly had some sort of a committee on laws, regu-
larly appointed, but apparently not a standing committee
in the strict sense of the word. With these two excep-
tions parliamentary custom was followed to the very
If the legislators of New York kept close to English
precedent in form, they were equally exact in the matter
of procedure. By the middle of the eighteenth century,
if not before, the grand committees in Parliament had
become * ' a complete dead letter. ' ' They were practically
as defunct in New York. Between 1750 and 1775 only
five different questions were referred to the grand com-
mittees : two to the committee for courts of justice, and
three to the one for grievances." These five subjects
might just as well have been referred to select commit-
tees, in accordance with the regular custom. It is diffi-
cult to see why the grand committees should have been
used at all. Evidently some member of an experimental
turn of mind wanted to see whether or not the rusty old
machinery could be made to move. He proved that it
could, because reports were ultimately submitted, but
the use of these committees was clearly contrary to all
An investigation of the Journal for the years 1737 to
1763 shows that the grand committees were not used
once during that period. As a matter of fact they made
their first appearance in the Assembly in 1737, for the
9iV. Y. Assembly Journal, September 4, 1750, p. 277.
10 Ibid., November 23, 1763, p. 727; November 27, 1765, pp. 786-787;
February 6, 1772, p. 42; February 16, 1773, p. 62; February 3, 1774, p. 34.
The grand committee for trade was never mentioned after the day of its
appointment. No business was ever referred to it, and there is nothing in
the Journal to indicate that it ever met.
STANDING COMMITTEES 9
Journal gives no hint of their existence before that date.^'^
Now the ways of the legislature are and have been de-
vious and obscure, so that extraordinary actions are to
be expected, but their aberrations are almost always
susceptible of explanation. This sudden adoption of a
useless, unused, worn-out committee system was appar-
ently one of the by-products of an extremely important
constitutional development, which affected all the colo-
nies. During the first half of the eighteenth century
the legislatures were beginning to find themselves, so to
speak, and to realize their own strength. Along with
this consciousness of power there was a natural desire
to increase their influence. In a word, the American
assemblies began to feel that their position corresponded
to that of the Parliament in England, and that their
authority in American affairs was supreme. Now if the
Assembly resembled the House of Commons in power,
it is not strange that the members should desire a like
resemblance in form. As one means of carrying out the
parallel they hit upon the superannuated committee sys-
tem, still somewhat imposing from an ornamental stand-
point, and attached it bodily to the Assembly. Then, if
their claims were challenged, they could point with pride
to their legislature, for was it not like its parent even
in minute details'?
This conscious copying of British customs, revealed
in the organization of the House, was referred to at least
once in the course of a debate. In 1768, while discussing
a point of committee procedure. Colonel Livingston
argued that it would be advisable to follow parlia-
mentary precedent, because of ''our imitation of the
practise of the Commons of Great Britain. .
11 N. Y. Assemhly Journal, July 23, 1728, p. 575, no mention of the
grand committees; September 1, 1737, p. 704, first mention.
12 lUd., December 16, 1768, p. 52.
10 DEVELOPMENT OF LAWMAKING
While it bears just as unmistakably the marks of its
origin as does that in the Assembly of New York, the
committee system in the House of Burgesses of Vir-
ginia was the very opposite of a dead letter, or a mere
survival of the past. Instead of being attached to the
legislature after customs had become fixed, the stand-
ing committee was introduced at an early stage in its
career. As the House itself developed, the committee
system grew with it, so that it became an important
factor in procedure. In New York the system might
have been removed in 1770 as suddenly as it had been
introduced in 1737, without interfering with or affecting
in any way the work of the Assembly, but an aban-
donment of the standing committees in Virginia would
have necessitated a radical rearrangement of legislative
The history of the standing committee in Virginia
shows how an institution may develop under the opera-
tion of two different forces. There was evidently a more
or less conscious attempt to make the House of Bur-
gesses correspond in form as closely as possible to the
House of Commons. At the same time, the svstem
developed gradually, in response to the pressure of an
increasing volume of business. Perhaps it would be
more accurate to say that the amount of work made the
committees necessary, and that parliamentary custom
supplied their names. By 1769 the system was com-
plete, with six standing committees, five of which were
named after those in Parliament, while one was a local
As early as 1691 there is evidence that the House of
Burgesses considered itself a House of Commons in
miniature. In that year the colonial agent was instructed
''to supplicate their majesties to confirm to Virginia the
authority of the Gen'l assembly consisting of the Gov-
STANDING COMMITTEES 11
ernor, Council, and Burgesses as near as may be to the
model of the Parliament of England. ' "^ With that feel-
ing so concretely expressed, it is not strange that the
form of the colonial assembly began to resemble that of
The first three standing committees in the House of
Burgesses were those on privileges and elections, propo-
sitions and grievances, and public claims, two of which
show traces of an imitation of parliamentary custom.
All three had apparently been in active service several
years before 1680. The existence of the committee on
claims shows that Virginia already had a clear idea of
the value of the standing committee, and that she had
learned to adapt the institution to local needs. The three
final additions to the group, on courts of justice, trade,
and religion, for each of which there was precedent in
England, at first sight appear to be cases of adoption for
the sake of mere appearances, in no way different from
those in New York."
The committee of public claims, strictly a colonial
development, had originally been a joint committee,
which acted as the highest court of appeals in the col-
ony. After its judicial work was taken away in 1680, it
lived on as a House committee, to investigate claims
laid before the legislature.^^ In 1727 the committee on
courts of justice appears to have been appointed for the
purpose of bringing about reforms in the courts of the
colony. It was ordered "to inquire into the methods of
proceeding in the Courts of Justice and the occasions of
13 Bruce, Inst. Hist, of Va., II, 478, note 1.
1* For the early history of the first three, see Bruce, Inst. Hist, of Va.,
II, 478, 485; Miller, Legisl. of Va., 171; Hartwell, Blair, and Chilton,
"Present State of Va., " in Mass. Hist. Soc. Colls., 1st Series V, 139.
First appointments of the last three: Va. H. of B. Journal, February 10,
1727, p. 16; May 7, 1742, p. 6; May 8, 1769, p. 190.
t5iUd., February 28, 1752, pp. 7-9; November 4 and 5, 1762, pp. 71, 75;
and Journal for 1772, passim.
12 DEVELOPMENT OF LAWMAKING
delaies therein, and to prepare a Bill for amending the
defects of the Laws now in force relating to the several
Courts of the Colony, and for the expediting of Busi-
Why the committee on trade should have been
appointed in 1742 is not so clear, but the committee for
religion, created in 1769, was certainly the outgrowth of
local conditions. In 1768 the evangelical activity of cer-
tain dissenters brought about a sweeping religious re-
vival, the result of which was considerable violence.
The Baptists in particular were regarded as a disturb-
ing social element, and in 1768 a member of that denomi-
nation was imprisoned because of his pernicious reli-
gious operations. Between 1768 and 1775 thirty preach-
ers and a few laymen suffered the same fate. The Bur-
gesses were compelled to take cognizance of the ques-
tion, and in order to deal with it as effectively as possi-
ble, they created a standing committee of religion.^'^ Had
there been no precedents in the House of Commons, diffi-
culties relating to courts and religion might have been
dealt with in some other way than by the appointment of
committees. But the Virginians were acquainted with
the customs of Parliament, and in solving their prob-
lems they very naturally made use of their knowledge
of English procedure. Thus while conditions to be
improved were local, parliamentary usage suggested the
By 1769, then, with the exception of the committee on
claims, the list of standing committees in Virginia corre-
sponded to that in the House of Commons. In England
these were grand committees or committees of the whole
House, while in Virginia, theoretically at least, member-
^ 16 Va. E. of B. Journal, February 10, 1727, p. 16.
17 Ibid., May 8, 1769, p. 190; Eckenrode, Separation of Church and State
in Va., 36-38, This committee had not been appointed "from time imme-
morial," as Mr. Eckenrode states on pp. 132-133.
STANDING COMMITTEES 13
ship was not so extensive. But as time went on, the sys-
tem in Virginia was made to resemble that of the House
of Commons in form as well as in name. In some way
the custom developed of adding to those members origi-
nally appointed, until by the end of the session the com-
mittees would be double the size they were at first.^*
That custom was in effect an approach toward the idea of
the grand committee, and a further step in that direction
was taken when the privilege of voting in committee
meetings was given to all House members who cared to
attend, whether they had been formally appointed or
not. An order to this effect, applying only to the com-
mittee on privileges and elections, was passed in 1772,
but in 1776 like permission was given to the committees
on propositions and grievances and on religion."
This peculiar custom of giving all members a voice in
the deliberations of these committees may have been
forced upon the Burgesses by chronic non-attendance.
In 1775 Dinwiddle wrote to Halifax that ' ' Our Assembly
met the 29*^ Ult'o, but not above one-half of them gave
their Attendance."-" It is impossible to gather from the
Journal just how regular or irregular the attendance
was, and it is of course unsafe to generalize from a single
piece of evidence. There is reason to believe, however,
that under ordinary circumstances there were numerous
18 The following figures, taken at random from two different sessions,
give an idea of the increase: ^7^9 2774
Priv. & Elects. .
Props. & Grievs. .
Courts of Justice
19 Fo. E. of B. Journal, February 13, 1772, p, 162; November 6, 1776,
20 Binwiddie Papers, II, 273,
14 DEVELOPMENT OF LAWMAKING
The trend of committee development in Virginia sug-
gests the point mentioned above in discussing the Assem-
bly of New York, that is, that as the legislatures became
more and more firmly convinced of their own importance,
they took pains to adopt the organization of the House
of Commons. The prevailing political belief found ex-
pression in the institutional development within the
But the resemblance of the standing committees of
Virginia to those of New York and England was confined
to name and form. Instead of serving as mere memo-
rials of an ancient custom, they were vigorous, hard-
working groups, actively engaged in legislative work.
Virginia alone of all the colonies really had a practical
understanding of the possibilities of an efficient com-
In the House of Burgesses the greater part of the work
had to do with petitions presented to the assembly. At
that time few measures demanding constructive legis-
lation came up in the course of a session, but there were
always a thousand and one local matters under consid-
eration. Much of this work, such as looking up the truth
of facts alleged in the petitions, or investigating condi-
tions which had been complained of, could be done by
committees. Procedure had become so well systematized
by 1750 that no time was lost in putting such petitions
into the hands of the proper committee. All those of a
general nature were customarily referred to the com-
mittee on propositions and grievances, the largest and
most active of the group. Originally this committee had
been appointed to consider complaints of one sort and
another which were presented to the assembly.^^ As
time went, however, complaints formed only a small
2x Bruce, Inst. Hist, of Va., II, 480-485 ; Va. H. of B. Journal, February
28, 1752, pp. 6-7.
STANDING COMMITTEES 15
proportion of the work referred to it. It had to deal
literally with all sorts of petitions, which included the
most varied subjects. Some asked for changes in the
laws relating to the shooting of squirrels and crows,
bounties for killing wolves, holding county fairs, regu-
lation of peddlers, treatment of stray animals, and
tobacco inspection; others dealt with questions of roads,
bridges, ferries, and county boundary lines ; still others
would be concerned with the sale of parts of entailed
estates; then, men engaged in doing work for the state,
printing the public papers, or keeping a lighthouse, for
example, would petition for an increase in salary. They
differed so much that a classification of subjects dealt
with is almost impossible.^^ In some sessions as many
as sixty petitions of this kind would be referred to the
committee on propositions and grievances alone.
Petitions of a more special nature would be referred
to other committees. Those relating to commerce and
related matters, such as maintenance of lighthouses,
would go to the committee on trade. After 1769, peti-
tions relating to religious questions generally, vestry
troubles, and church glebe lands, were referred to the
committee on religion.^^ Other petitions, dealing with
contested elections and related matters, went to the
committee on privileges and elections. These were con-
cerned generally with charges of the use of illegal meth-
ods in attempts to win an election, bribery and intimida-
tion, for example.-*
The handling of these petitions necessitated a large
22 The following references give an idea of the heterogeneous nature of
the petitions. Va. H. of B. Journal, pp. 159, 160, 165, 168-169, 186, 190-
191, session of 1772.
23 To the comm. on trade: Va. E. of B. Journal, May 7, 1742, p. 6; May
25, 1770, p. 17; May 21, 1774, pp. 119-120. To the comm. on religion:
May 8, 1769, p. 190; also pp. 192, 195, 196, 216, 238, 245.
2iIJ)id., February 28, 1752, pp. 6, 8; February 29, 1752, p. 19; March
3, 25, 1752, pp. 13, 57; November 5, 1761, p. 9; May 17, 1777, p. 18.
16 DEVELOPMENT OF LAWMAKING
amount of routine work. In every case the committee
had to make investigations concerning the truth of the
facts alleged, and then decide whether or not the case
was important enough to warrant legislative action.
Frequently witnesses had to be summoned, and the com-
mittee was sometimes kept busy with the taking of evi-
dence from one end of the session to the other. Every
case, no matter how trivial it seemed, was given a fair
The history of the committee on courts of justice shows
how a committee, in the creation of which parliamentary
precedent had played a large part, could be adapted to
local needs. It was supposed to consider all matters
relating to the courts, but as a rule few such questions
came before the colonial assembly. In Virginia, how-
ever, the committees were not ornaments, and if there
was not enough work in its pa'rticular line to keep a com-
mittee busy, duties of another kind would be turned over
to it. Before 1727, the committee on propositions and
grievances had been called upon to go through the Jour-
nal of the preceding session, and to make up and lay
before the House a list of all unfinished business. At the
same time it also made out a list of temporary laws that
had expired and were in need of renewal. This work was
finally transferred to the committee on courts of jus-
tice, because its regular duties were liglit.^^
Work on petitions was not, however, the unique fea-
ture of the standing committee system in Virginia. To
a certain extent similar work was done in the same way
in some of the other colonies. But the House of Bur-
gesses was the only assembly which permitted its stand-
ing committees to frame and amend bills. To-day the
25 Va. H. of B. Journal, February 28, 1752, pp. 7, 8; November 5, 1762,
pp. 72-73; November 11, 1769, pp. 248-250.
This practice of course prevented the smothering of business in com-
STANDING COMMITTEES 17
most important function of the regular committees is to
put measures in shape for their passage through the
legislature, and the very idea of a standing committee
system which had no connection with work of that kind
seems absurd. In all colonial assemblies bills were
drafted by select committees, and sometimes amend-
ments would be made in the same way. But the use of
the standing committees as parts of the actual law-
making machinery was peculiar to Virginia.^®
Although the committee system of Virginia was not
typical, but unique, as regards both the nature of work
done, and the number of standing committees, it serves
nevertheless as an excellent standard by which the others
may be judged. While no colonial assembly had as many
standing committees, most of them had one or two. All
of the colonies from New York to Georgia, with the pos-
sible exception of Delaware, had some sort of a com-
mittee on grievances. In New York and New Jersey it
was a grand committee, but elsewhere it was standing.
In fact, there was little variation in form, and, except in
Maryland, where it was called the committee on griev-
ances and courts of justice, and in North Carolina and
Georgia, where it had the Virginia name, propositions
and grievances, there was no difference in name. It was
in brief a committee either to consider complaints pre-
sented to the assembly, or to formulate the complaints
of the colony itself."
26 The following references are examples, not isolated cases, of this
practice. Va. H. of B. Journal for 1766, pp. 25, 33, 35, 38, 40, 46, 50, 64;
for 1767, pp. 144-146; for 1770, pp. 13, 40; 1772, pp. 176-178.
27 iV. Y. Assembly Journal, September 4, 1750, p. 277; November 23,
1763, p. 727; February 16, 1773, p. 62.
N. J. H. Journal, September 10, 1776, p. 7.
Pa. H. Journal, October 16, 1758, p. 1; November 16, pp. 4, 5; June 2,
1759, p. 55; February 28, 1759, p. 22; January 22, 1767, p. 512; Franklin,
Worlcs, II, 485-493.
Md. H. Journal, November 5, 1765, p. 17.
N. C. Col. Bees., V, 240, December 12, 1754; V, 297-300, January 9, 1755.
18 DEVELOPMENT OF LAWMAKING
Another standing committee, found in nearly all the
middle and southern colonies, was that on privileges and
elections. This differed little in the various assemblies,
and a description of the work done by the committee in
Virginia would apply equally well to them all.^^
In addition to the committees named above, there were
a few standing committees that deserve mention. In
North Carolina there was a joint committee on claims,
similar to the one in Virginia, and another on accounts,
the duty of which was to examine and audit all public
accounts, such as those of tax collectors, military officers,
and the state treasurers.^® Then, long before the revo-
lutionary committee of correspondence appeared, several
colonies had committees of that name, the duties of which
were to keep in touch with the colonial agents in Eng-
land. In some cases they were regular standing com-
mittees, but in others they were named by statute, so
that they were, strictly speaking, boards or commissions
rather than legislative committees.^"
S. C. H. Journal, June 26, 1769, p. 11. In South Carolina the committee
was not created until after the Eevolutionary agitation became serious,
and it was probably an outgrowth of that movement.
Ga. Col. Eecs., XIII, 13, January, 1755.
28^. T. Assembly Journal, September 4, 1750, p. 277; Md. H. Journal,
November 5, 1765, p. 17; N. C. Col. Bees., VI, 364; Ga. Col. Bees., XIII,
13, January 8, 1755. S. C. House Journal, October 13, 1760, p. 12.
In South Carolina the only standing committees were those on privileges
and elections, and on grievances; the latter was not created until June 26,
1769. S. C. H. Journal, p. 11. The following statement is made by
W. Eoy Smith, in South Carolina as a Boyal Province, p. 11: "Standing
committees on religion, privileges and elections, grievances, trade, and courts
of justice were appointed. ..." The Journal of the House contains no
record of any such appointments, and the writer quoted gives no authority
for his statement. The only colonial assembly having such a complete list
was the House of Burgesses of Virginia. It is not ordinarily regarded as
a safe practice to draw upon the journal of one legislature for information
regarding procedure in another.
29 N. C. Col. Bees., V, 239, 307, 965-975.
30 iV". Y. Assembly Journal, July 5, 1755, p. 452; Pa. H. Journal, October
16, 1758, p. 1; Md. H. Journal, December 20, 1765, pp. 84-85, appointed
for the recess only; Va. H. of B. Journal, November 8, 1762, p. 99, named
by statute; N. C. Col. Bees., VI, 429; Ga. Col. Bees., XIV, 10.
STANDING COMMITTEES 19
The assemblies of these middle and southern colonies
formed a group, the standing committees in which all
bore clearly marked traces of their parliamentary origin.
The New England colonies, on the other hand, formed
a wholly distinct group, in which the organization of the
assemblies did not resemble that of the House of Com-
mons. In New Hampshire, Rhode Island, and Connecti-
cut there were no standing committees at all before the
Revolution, and those that flourished for a time in
Massachusetts were of local origin.
By 1759, the House of Representatives of Massachu-
setts was on a par with the House of Burgesses, so far
as size and amount of business were concerned. The
legislature of Virginia, however, had developed a more
finished method of transacting business. As was the
case in many other assemblies, the greater part of the
work was concerned with petitions. In the first session
of the new House, in 1759, a little over two weeks in
length, fifty-nine petitions were introduced, all of which,
if granted, required a special vote of the General Court,
to cover cases not specifically provided for by law. In
the course of the four sessions from May, 1761, to May,
1762, over a hundred and seventy petitions were pre-
sented. These covered the widest range of subjects.
Men asked the legislature for authorization to dispose
of the land of their insane relatives, for permission
to start lotteries — this in Puritan Massachusetts — to
change their place of worship, to alter boundary lines,
and to fish for alewives in seines, — in short, they peti-
tioned for anything they wanted, and their wants were
both varied and curious. Instead of relying upon stand-
ing committees to perform the routine work in connection
with this heterogeneous mass of business, the House of
Representatives turned it all over to separate select
committees. This method did not insure any greater
20 DEVELOPMENT OF LAWMAKING
care in the handling of these documents than did the Vir-
ginia plan, and it was surely unbusinesslike and wasteful.
Apparently with a growing realization of this fact the
House, in 1760, appointed a standing committee to deal
with petitions of sick and wounded soldiers.^^ In 1762,
seven different standing committees were appointed,
each of which was expected to handle petitions relating
to a certain definite subject. These committees were
brought into existence, not for the purpose of imitating
parliamentary precedent, but to enable the House to
transact its business more expeditiously, and their
names bear evidence of their local origin. They were
appointed to consider petitions of sick and wounded
soldiers, of those captured in the war, of men who had
lost their guns, and of those who for some reason had
failed to get their wages; the other three were to deal
with petitions regarding the sale of lands, rehearings of
lawsuits, and requests for pensions.^^ The following
year the committee on petitions of soldiers who were
deprived of their wages was not reappointed, and in
1763 two more were dropped. From 1765 to 1767 none
at all were appointed, and from 1767 to 1774 there was
only one, on petitions regarding the sale of land.^^ As
the revolutionary movement increased in violence, busi-
ness of a general nature received scant attention in the
House, and standing committees on petitions were no
longer needed. Then, too, the standing committees had
been appointed to deal with questions growing out of
the war, and when it was over petitions on those particu-
lar subjects ceased to be burdensome. This rise of
standing committees is interesting, because they were
clearly a local development. Large amounts of work
31 Mass. n. Journal, June 2, 1760, p. 16.
32 lUd., May 29, .June 2, 1761, pp. 9, 20.
33 7fctd., May 28, June 1, 1762, pp. 13, 27; May 26, 1763, p. 11; June 1,
1764, p. 12; May 28, 1767, p. 9,
STANDING COMMITTEES 21
would have forced the legislatures to adopt the system
eventually, even though there had been no precedents
for them in Parliament.
Aside from these in Massachusetts, and the revolu-
tionary committees of correspondence after 1772, there
were no other standing committees in New England.
The so-called committees of war which appeared in the
northern colonies during the Seven Years ' War were not
legislative committees at all, but administrative boards
appointed by the assemblies. In New Hampshire they
were named in the military appropriation acts. When
the assembly voted money for the war, it would name
at the same time a committee of its own members to
superintend the expenditure of those funds. The
''Committee of Warr" appointed in Rhode Island in
1758 contained no members of the House at all.^*
Besides the standing committees, certain select com-
mittees were regularly appointed in all the colonies each
term, and were therefore a part of the committee
systems. The most common were those to reply to the
governor's speech, to audit the public accounts, and to
report on temporary laws which needed to be renewed.
Thus the regular recurrence of certain definite work gave
rise to a committee to attend to it.
All the colonial assemblies appointed numerous select
committees in the course of a session. Whenever the
House wanted more light on any subject, which did not
lie within the field of any of the standing committees, a
small committee would be appointed to deal with the
Except in the House of Burgesses, bills were always
drafted by select committees. It was not the custom
then for an individual member to lay bills before the
House on his own responsibility. He might move that
34 iV. K. Prov. Papers, VI, 369; B. I. H. Journal, May 6, 1758.
22 DEVELOPMENT OF LAWMAKING
a bill be brought in, or he might ask permission to intro-
duce a measure, but in every case a select committee
would be appointed to prepare the draft.^^
If the primary object of this comparative study of the
standing committee in colonial assemblies were the
discovery of precedents bearing on Congressional pro-
cedure, the results would indeed be disappointing. It
is evident that the records of the House of Burgesses
alone contain material of value on that point. With the
possible exception of that in North Carolina, the other
legislatures might be ignored. To be sure assemblymen
in other colonies knew what the standing committee was,
but their own experience would convince them that it
was an unnecessary factor in lawmaking. Certain it
is that outside of Virginia the standing committee was
anything but the distinguishing characteristic of the
But in some cases negative results are by no means
valueless. It is evident that the standing committee
reveals very little of the real forces at work in the com-
plex process of legislation, and consequently it cannot
be the proper avenue of approach. If that is the case,
what was the important element in legislative organi-
zation? Legislatures as such do not run themselves.
There is always an inner circle, such as the Cabinet in
England, the late committee on rules in Congress, or
the caucus. For light on this prime factor in legislative
processes, recourse must be had, not to the official
records, because they are always silent on the most
35 For examples see: N. H. Prov. Papers, VI, 540, VII, 147; Mass. H.
Journal, June 1, 1759, p. 11; B. I. H. Journal, June 15, 1764; N. Y.
E. Journal, September 5, 1750, p. 277; Pa. H. Journal, November 24,
1758, p. 7; Md. H. Journal, November 6, 1765, p. 18; Va. H. of B. Journal,
November 14, 1753, p. 122; N. C. Col. Bees., IV, 819, VII, 929; S. C. H.
Journal, May 19, 1760, p. 196; Ga. Col. Bees., XIII, 27.
STANDING COMMITTEES 23
interesting aspects of their subject, but to the annals of
the political party. It is only by combining the accounts
of the two types of organization, formal and informal,
that an adequate conception of the legislature as it was
can be formed.
PARTY ORGANIZATION IN THE LEGISLATURE
The legislature itself, with its formal committee
system, is the instrument by means of which policies and
principles are hammered into statutes; it is in no sense
the agent which decides upon the advisability of pro-
posing or making new laws. Hamilton's famous financial
projects, for example, were ratified by Congress, but
they were drawn up and virtually passed by the presiding
genius in the Treasury department. No one dreams of
finding the true history of the Assumption Act in either
the Journal or the Annals of Congress; the really
interesting episodes in the passing of that piece of
legislation are recorded in the letters or diaries of a few
men who knew — or thought they knew — just how the plan
became a law. It is to the party organization, the
''Junto," as the colonists called it, which is at the same
time within and above the legislature, that one looks for
the tangible results of a session. Such being the case,
the most important standing committee in the legislature
is the one which receives no regular appointment, and
which has no official existence, namely, the group of party
Indispensable as they are, the activities of these boards
of directors are rarely brought out into the full light of
publicity. The significant operations in lawmaking are
most frequently the subterranean ones, concerning which
little evidence exists. It is always hard to find out just
what the organization has contributed in any particular
case, and it is even more difficult to discover its mode of
PARTY ORGANIZATION 25
working. There are, however, enough bits of information
available to make it worth while to attempt a study of
these irregular committees, and the account need not
be as impressionistic as the elusive nature of the subject
might lead one to believe.
In Massachusetts after 1766, and to a certain extent
before, the political destinies of the House of Repre-
sentatives were watched over by a powerful little group
of members, the leaders of which were the Boston dele-
gation and their friends. The names which stand out
most conspicuously are Samuel Adams, Thomas Gushing,
James Otis, and John Hancock of Boston, Hawley of
Northampton, Sheaffe of Charlestown, together with
Bowers, Dexter, and Partridge. Of this aggregation the
chieftain was Adams, a man who should hold a position
in the front rank of American political strategists.
When the new House organized for business on May
28, 1766, James Otis was elected Speaker, while Adams
himself was made clerk. The thought of the hot-tempered
Otis as presiding officer, however, was too much for
Governor Bernard. By virtue of an undoubted, though
seldom used authority, he refused to approve the choice
of the House. Thereupon Thomas Gushing was named,
and although he was a member of the party opposed to
the governor, Bernard made the best of a bad matter and
Henceforth until the Revolution the business of the
House was transacted by this Boston ''Junto." There
were no standing committees of importance after 1766,
but select committees were extensively used. They
drafted the various measures, resolutions, and laws
passed by the House, and naturally their membership
would be carefully arranged by the leaders in charge.
On these committees the same names, those of the four
1 Mass. H. Journal, May 28, 1766, pp. 4-5.
26 DEVELOPMENT OF LAWMAKING
Bostonians and their trusted lieutenants, recur again and
again, so often that mere accident could not account for
their repetition. In a general statement it is difficult
to convey an adequate idea of the completeness and
comprehensiveness of their control. On every important
committee they had a decisive majority. All matters
pertaining to relations with the governor, the British
government, or the colonial agent in England in par-
ticular, and in fact all general questions bearing on the
heated political controversy were referred to the same
men. Other names might appear from time to time, but
never in sufficient numbers to change the complexion of
the committees themselves. Thus even the Journal
of the House bears witness to the importance of this
particular party organization.^
This unofficial standing committee, for such it really
was, was sometimes formally vested with authority to
look after the interests of the province during recesses
between the regular sessions. For instance, on February
20, 1766, just before the close of the session, a committee
consisting of Lee of Cambridge, Gushing, Gray, and
Samuel Adams of Boston, and Sheaffe of Charlestown,
all prominent Whigs, as the opponents of the governor
were styled, was appointed to take into consideration
''the difficulties and discouragements as well with
respect to trade, as the internal policy of the province,"
and to report at the next session.^ In December of
the same year a similar committee was appointed.*
"Internal affairs" of the province were ordinarily
attended to by the governor and council during a recess.
By making these appointments the House, or rather the
Whig party, was guilty of a direct attack upon executive
2 See note at end of this chapter for a list of some of these committees.
3 Mass. B. Journal, February 20, 1766, p. 300; italics mine.
4 lUd., December 8, 1766, p. 217.
PARTY ORGANIZATION 27
The one striking exception to these general statements
regarding the personnel of committees on important
subjects serves as further proof, if any is needed, of the
absolute power of the ''Junto." In 1766 the governor
was constantly urging the legislature to make an effort to
discover those responsible for the riots over the Stamp
Act of the preceding year. Bernard offered to lend all
the assistance he could to help in the work. There is
little doubt that Adams and Otis knew practically all
there was to be known about those disturbances and
those responsible for them, and any honest investigation
would surely have implicated them. They, however, or
at least the House, agreed to cooperate with the governor,
and a committee was appointed to collect data. The five
men named were directed to sit during the recess, and
to gather information that might assist in the discovery,
"as far as may be," of the guilty ones. The outbreaks
had taken place chiefly in Boston and the neighboring
towns, but instead of appointing members from those
districts to the committee, the House appointed five men
from the country, who, so far as the records show, had
never served on a committee before, and who had taken
no active part in the work of the House. Thus the
appointees were men who had no actual knowledge of
the situation, and who stood little chance of discovering
the real facts. In due time this joker committee reported,
but its findings revealed nothing except an apparent
desire to avoid probing too deeply.^ The subject itself
was important enough, but those who ordinarily took
charge of such matters did not care to conduct an
investigation into operations with which they had been
too intimately connected. They could effectively smother
the whole thing by making it impossible for the com-
^Mass. H. Journal, June 28, October 30, 1766, pp. 142, 153-156.
28 DEVELOPMENT OF LAWMAKING
mittee to get in touch with the facts.® Thus the record
of committee appointments proves that the business of
the House of Representatives, if not of the whole legis-
lature, was effectively guided and controlled by the
delegation from Boston. If they wanted action, they
took it; if they wished to avoid it, they made arrange-
A detailed analysis of the operations of this group
would lay bare the very lively history of pre-
revolutionary politics in Massachusetts, for the Boston
''Junto" was more important than a mere legislative
committee. It was the centre from which revolutionary
propaganda was carried into every part of the province.
Interesting as it would be to trace out the relationship
between such little-known societies as the Sons of
Liberty, for example, and the leaders in the House of
Representatives, a study of that kind would be only
remotely connected with the development of legislative
organization. There were however certain important
steps taken within the General Court which serve to
illustrate the career of the ''Junto" as a part of law-
In the first place, the hand of the "Junto" is plainly to
be seen in the election of councillors for 1766, and the
years following. In Massachusetts the upper house was
chosen by the lower, at the opening of each new General
Court. Up to and including 1765 the conservative party,
led by Thomas Hutchinson, had retained control of the
Council. Even Andrew Oliver, who had achieved the
unenviable distinction of being appointed distributor
of stamps, was reelected in 1765, although by an ex-
tremely narrow margin. In the next election, thanks to
6 The General Court subsequently passed an act to indemnify those
whose property had been destroyed, and to exempt from prosecution those
who had been concerned in the riots.
PARTY ORGANIZATION 29
an energetic newspaper campaign, apparently directed
by Samuel Adams/ the presiding genius of the Boston
faction, the Whigs secured an overwhelming majority
in the House of Representatives. The fate of the
Council was sealed by this election. The temper of the
House, manifested in its organization, already referred
to, was even more clearly set forth in the choice of
councillors. Hutchinson, Oliver, and two other con-
servatives who had been instrumental in defeating the
radical program of the House during the agitation over
the Stamp Act, failed of reelection. A fifth had already
resigned in anticipation of the result. For the five
vacant places, prominent Whigs were chosen. Although
he was powerless to prevent the exclusion of his friends,
Governor Bernard could at least have a negative voice
in the selection of their successors. He promptly re-
jected the five Whigs, and for good measure he also
threw out James Otis, Senior, who had been in the
Council since 1763.^ The House in turn refused to name
any others, so the Council was left with only twenty-two
members, instead of the customary twenty-eight. But
the Whigs had carried their point, for the elimination
of the five conservatives had given them a safe majority.
Henceforth until the Revolution, with the exception of
one year, the membership of the Board was never com-
plete. The effect of the election on the Council was
described by Hutchinson himself as follows: ''In most
of the addresses, votes, and other proceedings in council,
of importance, for several years past, the lieutenant-
7 Boston Evening Post, April 28, May 5, 1766.
sMass. H. Journal, May 28, 29, 1766, pp. 7, 8, 10. This exclusion
of Hutchinson and his friends was the outcome of a party quarrel dating
back to 1760. The Whig leaders had tried to oust them before, but they
had failed each year until this. Boston Gazette, April 26, 1762; Minot,
II, 111. Public opinion would not tolerate their removal until after the
disturbances over the Stamp Act.
30 DEVELOPMENT OF LAWMAKING
governor (Hutchinson) had been employed as chairman
of the committees. Mr. Bowdoin succeeded him, and
obtained a greater influence over the council than his
predecessor ever had ; and, being united in principle with
the leading men in the house, measures were concerted
between him and them; and from this time the council,
in matters which concerned the controversy between the
parliament and the colonies, in scarcely any instance,
disagreed with the house."®
From 1766 on the work of the House of Representa-
tives bears witness to the extent of the influence enjoyed
by Samuel Adams and his corps of assistants. For one
thing the various resolutions of the legislature can often
be traced back to him, through the Boston town meeting
and the town caucus. It so happened that many matters
of business which subsequently came before the House
first appeared in the form of instructions, issued by the
metropolis for the guidance of its representatives. Now
the political fortunes of the town were never left to blind
chance; instead they were carefully fostered by the
famous Caucus Club, described by John Adams, the
cousin of Samuel. This organization had all the char-
acteristics of a modem machine. ''This day," wrote
Adams, "learned that the Caucus club meets at certain
times in the garret of Tom Dawes, the adjutant of the
Boston regiment. He has a large house and he has a
movable partition in the garret which he takes down and
the whole club meets in one room. There they smoke
tobacco until you cannot see from one end of the garret
to the other. There they drink flip, I suppose, and they
choose a moderator who puts questions to vote regu-
larly; and selectmen, assessors, collectors, fire-wards,
and representatives are regularly chosen before they are
chosen in the town." In the list of names of those
» Hutchinson, Hist, of Mass., Ill, 156.
PARTY ORGANIZATION 31
present, that of Samuel Adams of course appears/" If
this club was influential enough to choose both town
officers and representatives, the assumption is reasonable
that it was also responsible for the pronunciamentos
issued by the town meeting. As a matter of fact, the
three units referred to, caucus, town meeting, and House
of Representatives, were all linked together in the
person of Samuel Adams." Such being the case, instead
of being bona fide instructions from constituents to
representatives, these publications of the town were
nothing but the declaration of the policies of the leaders.
Measures recommended by a machine-controlled town
meeting were consistently ratified by the House of
Representatives, directed by the same power. The
instructions of May 26, 1766, may be taken as a fair
example. On that date the town drew up its orders for
its representatives, and they were strictly enjoined to
regulate their conduct in accordance with them.^^ In the
first place the town urged them to prevent the use of
public funds contrary to the wishes of the House of
Representatives. Specifically they were directed to
''oppose any grants for erecting, maintaining, or gar-
risoning any useless or unnecessary forts or fortresses,
in any part of this province"; if any such forts were
being maintained, it was the duty of the representatives,
so the instructions declared, to have the grievances
Next the representatives were instructed to secure the
10 John Adams, Worlcs, II, 144 ; see also Boston Evening Post, March 14,
21, 1763, for other accounts. John Adams, December 23, 1765, wrote that
he went with his cousin Samuel to the Monday Night Club. ' * Politicians
all at this club. We had many curious anecdotes about governors, coun-
sellors, representatives, demagogues, merchants, etc. ' '
11 The following references throw light on Adams' services in linking
together town meeting and legislature: Boston Town Bees., XVI, 152, 159,
161, 182; Mass. E. Journal, October 23, 24, 29, 1765; January 16, 17, 1766.
12 Boston Town Eecs., XVI, 182 et seq.
32 DEVELOPMENT OF LAWMAKING
passage of an act to make debates in the House of Repre-
sentatives as public as those in the House of Commons.
With reference to appropriations for government
officials, the town advised its representatives not to be
''persimonious in the support of executive officers of
government," but at the same time ''to use all their
influence against any one officer's holding two or more
places inconsistent or interfering with each other." This
was aimed at Thomas Hutchinson, who was lieutenant-
governor, member of the Council, chief justice of the
Superior Court, as well as judge of probate.
Finally, the instructions contained the following advice
for guidance in the election of the Council: "Ordered
that you take particular care in your choice of councilers
and other officers of the government for the ensuing year,
that they be men of integrity and wisdom, lovers of
liberty, and of our civil and ecclesiastical constitution;
not giving your suffrage for any whose characters are
doubtful, or who are of a timid or wavering disposition. ' '
The subjects enumerated in these instructions were
brought before the House, and, what is more to the point,
they received favorable attention. In compliance with
the advice regarding fortresses, the House voted to
reduce the forces at Castle William and also at Fort
Pownall." On June 11, a committee was appointed to
arrange for the construction of a gallery for spectators,
and the debates were duly thrown open to the public.^*
Then, to impress upon Hutchinson the fact that they
disapproved of his holding so many offices, the members
refused to vote any salary for the lieutenant-governor.
As a matter of fact in this instance the House was carry-
ing out a well-established custom, for it had never given
Hutchinson any salary for that office, although he had
13 Mass. H. Journal, June 21, 25, 26, 1766.
14 Ibid., June 11, 1766.
PARTY ORGANIZATION 33
held it for several years.^® The final instruction
regarding the choice of members of the Council was
scrupulously obeyed. It is clear that the Boston
''Junto" was eminently successful in securing the
adoption of its legislative program.
In the winter session of 1767-1768 the directors of the
Whig forces were clearly responsible for the little work
that was turned out. When the General Court convened,
late in December, a committee on the state of the prov-
ince was appointed, consisting of Cushing, Otis, Adams,
and Hancock, the Boston delegation, and, in addition,
James Otis, Senior, Hawley of Northampton, a radical
of radicals. Bowers and Dexter, whose election to the
Council had been negatived by Bernard, and Sheaffe,
another active Whig.^*^ The tangible results of the ses-
sion were first a series of resolutions urging a policy of
non-importation, to defeat the Townshend Acts. These
were nothing but a repetition of some previously adopted
by the Boston town meeting, just before the meeting of
the legislature. As usual, the town ordered its repre-
sentatives to have these measures of passive resistance
adopted by the House. Then letters in which the cause
of the Americans was set forth were despatched to Cam-
den, Chatham, Shelburne, Conway, Rockingham, and to
the Commissioners of the Treasury. The masterpiece of
the session was the famous circular letter that brought
so much notoriety to Massachusetts." All these literary
productions were drafted by the committee named, or
under its immediate supervision.
Up to this point the ''Junto" had been noisy and dis-
agreeable, at least from Bernard's point of view, and it
had tied his hands when he wished to protect the colony
15 Mass. H. Journal, June 12, 1765.
16 Ibid., December 30, 1767.
IT Boston Town Bees., XVI, 221-226; H. Journal, January 15, 20, 22, 29;
February 2, 11, 13, 17, 26, 1768.
34 DEVELOPMENT OF LAWMAKING
from mob violence. It had not, however, openly taken
liberties with the charter to the extent of encroaching
on executive prerogative. But in 1768 the party machine
which enjoyed so much power, both in the town meeting
and in the General Court, tried to call a meeting of the
assembly after its dissolution by Governor Bernard. In
June of that year the cargo of the Liberty, one of John
Hancock's sloops, had been landed without payment of
duty, and the offense was magnified in the eyes of the
British officials by the owner's boasts before the act
itself occurred. The vessel was seized by the customs
officials, who were in turn attacked by a mob. The
officers themselves were stoned, the windows of their
houses broken, and the collector's boat was dragged up
to the Common and burned.^^ It was this manifestation
of lawlessness which seems to have led to the final deci-
sion to send British troops to Boston. Although the
General Court was in session at the time of the riot,
Bernard dissolved it a few days thereafter. Acting upon
instructions from home, he had peremptorily ordered
the House to rescind its circular letter, and the House
stubbornly refused to yield. After an interchange of
messages which fairly bristled with bitter feeling on both
sides, the governor put an end to the life of that particu-
lar assembly, and after the riot he refused to comply with
the demands of the town of Boston that writs for a new
election be issued.^^
Thereupon followed an act that bordered close on
revolution, namely, the attempt on the part of the politi-
cal leaders of Boston to summon an assembly on their
own responsibility. After their fruitless calls upon the
governor, the town authorities voted to appoint repre-
sentatives to a ''Committee of Convention." The call
18 Boston Evening Post, June 30, 1768.
iQ Boston Town Eecs., XVI, 260; Journal Mass. H. of E., June 30, 1768.
PARTY ORGANIZATION 35
was issued to all the other towns in the province to send
in their representatives. The Boston town meeting
selected as its delegates the four who looked after its
interests in the House of Representatives : Otis, Gushing,
Adams, and Hancock.^" The purpose of the whole thing
was of course to have a popular, or at least a representa-
tive, assembly in session when the expected troops
On the day appointed, September 26, 1768, representa-
tives to the number of seventy, from about sixty differ-
ent towns, gathered in Faneuil Hall. For chairman the
Speaker of the last House, Thomas Gushing, was chosen,
apparently with the idea of giving a touch of regularity
to the proceedings." After petitioning Governor Ber-
nard to issue writs for a new election, the Gonvention
drafted a set of resolutions, in which illegal intentions
were disclaimed, and loyalty to the king was righteously
asserted. Thereupon the work came to an abrupt end,
and after remaining in session for only a week, the mem-
bers left for their homes the day after the first troop
transports arrived at Nantasket.-^ The unexpected mod-
eration of the leaders, so different from their usual
demeanor, was due, so Bernard wrote, to the presence
of many cautious members, who consented to attend for
the express purpose of restraining the Boston ''Junto."
Because of the firm stand taken by these men, Samuel
Adams was silenced when he tried to launch out into the
violent language to which the House of Representatives
had become accustomed.'^ The first attempt to bring a
revolutionary convention into existence was a failure.
20 Boston Town Bees., XVI, 263.
21 Boston Evening Post, September 26, 1768; Hutchinson, Hist, of Mass.,
22 lUd., Ill, 211.
23 Boston Evening Post, September 11, 1769, quoting a letter of Bernard
to Hillsborough, September 27, 1768.
36 DEVELOPMENT OF LAWMAKING
The importance of this meeting is to be found, not in
its actual accomplishment, measured in deeds, or even in
words, but in the fact that it met at all. According to the
charter, the power of summoning a new assembly before
the time set for the regular elections, was vested exclu-
sively in the governor. In effect this "Committee of
Convention" was really a Provincial Congress, similar
to the one summoned in 1774. In other words, the
machinery of the later revolutionary government was
given an actual trial in 1768. Even though public opin-
ion was not quite ready to sanction the complete assump-
tion of governmental authority by the radical leaders, it
was a recognized fact that all real power was in their
hands. In reporting on the condition in Massachusetts
shortly after his arrival. General Gage wrote Hills-
borough that ''those mad people (the Whig leaders)
have governed the town and influenced the province a
very long time. ..." After a careful survey of the
situation as a whole, he went on : ' ' from what has been
said, your lordship will conclude that there is no govern-
ment in Boston, there is in truth very little at present,
and the constitution of the province leans so much to
democracy, that the governor has not the power to
remedy the disorders which happen in it."^* According
to this statement, the organization, which was a munici-
pal machine and a legislative committee combined, had
practically superseded the regular institutions of gov-
ernment in the colony. To be sure it is difficult to point
out specific instances of their assumption of regular
administrative functions, and it is probably true that
the leaders were aiming, not at the consolidation of the
executive with the legislature, but rather at the clog-
ging of the wheels of British officialdom. The natural
24 Gage to Hillsborough, October 31, 1768, p. 18, in a collection published
by Edes and Gill.
PARTY ORGANIZATION 37
outcome of this policy of obstruction would inevitably
be the rise to power of the committee in the legislature.
They could not destroy one kind of authority without
putting something else in its place.
Even though the main purpose of the ^' Junto" was
negative rather than positive, in case of need it could take
definite steps to bring other branches of the government
under its own control. When the British government
announced its intention of providing salaries for colonial
executive and judicial officials out of the royal treasury,
the local legislatures promptly bethought themselves of
means to thwart the plan. In Massachusetts the General
Court did not complain very bitterly when Governor
Hutchinson reported that he would no longer need the
salary provided by the colony. There seemed to be a
general feeling that his power had ceased to be danger-
ous, and that the province was relieved of an unnecessary
expense. But the equanimity with which they greeted
Hutchinson's declaration gave way to excited concern
when royal salaries were proposed for the justices of
the Superior Court. After a desultory discussion for
several weeks, the House of Representatives finally
announced its policy. In the first place it gave the jus-
tices an opportunity to declare explicitly whether or
not they would take advantage of the new provision. If
they refused to commit themselves, they were to be
denounced as enemies of their country. In the case of
any who should prove to be so devoid of patriotism as
to accept the new salaries, the House declared that it
would be *Hhe indispensible duty of the Commons of this
province, to impeach them before the governor and coun-
cil, as men disqualified to hold the important posts they
now sustain.'"^ The importance of this threat, involv-
ing an assumption of power that was radically new, even
25 Journal Mass. H. of B., June 28, 1773, p. 94.
38 DEVELOPMENT OF LAWMAKING
in Massachusetts, can hardly be overstated. The House
possessed no power of impeachment, nor had it any right
to use the term ''Commons of this province." The epi-
sode shows clearly enough that the Whigs were deter-
mined to raise their legislature to the level of the
Commons in England.
After making its threat, the House gave the justices
ample time to ponder over the possible results of a
refusal to surrender. By February both parties had
made up their minds. One member of the court, Trow-
bridge, announced that he would accept no salary paid
under royal warrant, and his statement was accepted as
satisfactory by the House. The other judges kept their
own counsel, and the House voted to demand a definite
declaration of their intentions within a week. Three of
the remaining justices thereupon gave the required
pledge, and agreed to accept the compensation granted
by the House. Peter Oliver, the chief justice, was the
only one to stand out, and he took up the challenge of the
House. After bluntly stating that he had found it
impossible to live on the niggardly salary provided by
the legislature, he said that he intended to take advan-
tage of the new grants. The only answer of the House
was the institution of impeachment proceedings. For-
mal articles were drawn up and laid before the Council,
but Hutchinson prevented definite action by absenting
himself. Soon afterward he put an end to the contest
by proroguing the assembly.^'' Thus the impeachment
itself was a failure, but in spite of that the real victory
lay with the House. Four justices had been brought to
terms, and the attempt to establish an independent judi-
ciary came to naught. In this whole episode the names
of the regular Whig leaders constantly recur, particu-
2e Journal Mass. H. of E., February 1, 2, 7, 8, 24, 1774, pp. 113, 117,
133-135, 137-139, 194-199.
PARTY ORGANIZATION 39
larly in the committees appointed to draft the numerous
resolutions and messages. The work was certainly car-
ried on under their supervision, and they were undoubt-
edly responsible for its direction. The net result of their
victory, for such it was, was to bring the Superior Court
under the control of the Boston "Junto."
The effect of this bitter political contest upon the
administration can easily be imagined. Even as early
as 1769, Governor Bernard was utterly discouraged.
According to his testimony, and he was in a position to
know, the royal executive in Massachusetts had become
a mere cipher. His analysis of the situation in a letter
to Barrington is an illuminating commentary on the
strength of the Whig party leaders. "In short, my
Lord," he wrote, "this Government is now brought to
this state, that if the Cheifs of the Faction are not pun-
ished or at least so far censured as to be disqualified
from holding Offices," if the appointment of the Council
is not given to the king, and if the crown officials are not
given salaries independent of the people, "It signifies
little who is Governor. Whoever he is, he must either
live in perpetual contention in vainly endeavoring to
support the royal Rights, or he must purchase Peace by
a prudential Sacrifice of them. But for these 4 years
past so uniform a system of bringing all Power into
the Hands of the People has been prosecuted without
Interruption & with such Success that all Fear Rever-
ence, Respect & Awe which before formed a tolerable
Ballance against the Power of the People, are annihil-
ated & the artificial Weights being removed, the royal
Scale mounts up and kicks the Beam. And I do assure
your Lordship that if I was to answer to his Majesty
himself on this Subject, I would give it as my Opinion
that if he cannot secure to himself the Appointment of
the Council, it is not worth while to keep that of the
40 DEVELOPMENT OF LAWMAKING
Governor. For it would be better that Mass Bay should
be a complete Republic like Connecticut than to remain
with so few Ingredients of royalty in it as shall be insuffi-
cient to maintain the real royal character."" After the
new elections he wrote again, in a still more melancholy
tone. ''Tomorrow the new Assembly meets, which will
be allmost wholly composed of the Tools of the Faction.
Many of the Friends of Government have been turned
out ; Many have declined serving ; the few who will be in
the House will be only Spectators. So that the Faction
will have everything in their hands. "^^
Bernard's pessimistic prophecy was fulfilled when the
legislature assembled. At the very beginning of the ses-
sion, before choosing the Speaker and clerk, the House
appointed two committees, composed of the Whig lead-
ers, to draw up resolutions against meeting under the
guns of the troops. The resolutions were brought in at
once, ready made beforehand.^" After transacting that
business before they were formally organized, the mem-
bers chose their officials, and then turned to the election
of the Council. The characteristics of those chosen, and
incidentally the state of mind of Governor Bernard, can
be gathered from the fact that out of the twenty-eight
named, he outdid his previous efforts, and negatived
Bernard, who had been recalled, left the province in
July, 1769, and turned over his office to Thomas Hutchin-
son. By that time the position had become more of an
embarrassing liability than a valuable asset. The vio-
lent controversies of the preceding years had com-
pletely alienated the legislature from the royal governor,
and had virtually transferred all real authority from the
27 Channing & Coolidge, Barrington-Bernard Corresp., p. 197.
29 Mass. H. Journal, May 31, 1769, pp. 5-7.
30 Ibid., p. 9,
PARTY ORGANIZATION 41
executive to the General Court. Partisan bitterness was
thus bringing about an important change in the govern-
Hutchinson retained his post until 1774. When he
sailed for England he said that the governor had noth-
ing left but an empty title.^^ It is clear that the colonial
administrative system of Great Britain had completely
broken down in Massachusetts. While it is difficult to
point to specific instances of the assumption by the legis-
lature of the governor's prerogative, nevertheless we
have the statements of two retiring executives that all
the attributes of authority had passed to the leaders of
the assembly. Even the British government took this
view of the situation. Hutchinson was succeeded by
General Gage, in the capacity of military governor. This
appointment is in itself evidence enough that the state-
ments of Bernard and Hutchinson had been taken at
their face value. Authorized civil government had come
to an end, and the instrument responsible for the change
was the Boston '^ Junto."
Gage's commission marked the end of all pretense of
cooperation between colony and home government.
Events moved rapidly after he attempted to take charge,
and in October, 1774, the first Provincial Congress met
in Massachusetts. The de facto government established
was on the surface very different from the system pro-
vided for in the charter. The governor and council were
dropped, and executive authority was vested in or
assumed by a committee of safety, composed of the lead-
ing members of the Congress. In reality, however, no
sudden or abrupt change had taken place, because the
evidence shows that the charter had been virtually super-
seded before 1774. The Provincial Congress was merely
the House of Representatives under a new name, and
31 Hutchinson, 'Hist, of Mass., Ill, 455.
42 DEVELOPMENT OF LAWMAKING
tlie committee was the ** Junto." The revolutionary gov-
ernment had gradually grown up within the old, and in
due time supplanted it; its acceptance was simply the
recognition of an accomplished fact. In the process
of transition from colony to state, the party organ-
ization in the legislature was the most effective and
important, as well as the most conspicuous factor.
In Virginia a similar development was taking place,
and the process of stripping power from the governor
was not so very different from that just described in
Massachusetts. In 1754, when trouble with the French
and Indians seemed imminent, Governor Dinwiddle did
his utmost to arouse in the legislature an appreciation
of the seriousness of the approaching crisis, and to
induce the members to provide funds and troops for an
active campaign. His endeavors to secure appropria-
tions were constantly thwarted by the opposition in the
House, and it appears that this opposition was directed
by a committee very much like the ''Junto" in Massachu-
setts. On January 14, 1754, the assembly met, but to
Dinwiddle's distress they were "very much in a Repub-
lican way of thinking," so that they did "not act in a
proper Constitutional way. ..." Finally, "with great
Perswasions, many Argum'ts and much Trouble, they
were prevail 'd on to vote 10000£ for protecting our
Frontiers; That Bill was so clogg'd with unreasonable
regulat's and Encroachm'ts on the Prerogative, that I,
by no means, w'd have given my assent to it if His My's
Service had not immediately call'd for a Supply to sup-
port the Expedt. I have in view, to support His My's
just rights to the Lands on the Ohio. They plead Prece-
dents in raising money in this Method, w'ch I found
was so in my Predecessor's Time. . . . This I urg'd sh'd
not be a Precd't as it's contrary to His My's Int't, how-
ever, as the Exigency of the pres't Affair c'd not be
PARTY ORGANIZATION 43
Otherways supplied, I was oblig'd to submit, and for
that reason I hope I shall stand excused, ' "^ The heinous
sin which the Burgesses committed, in the governor's
eyes, was the addition to this bill of a clause which gave
authority over the expenditure of the money appro-
priated to a committee named in the bill. ''This Bill,"
wrote Dinwiddle later on, ' ' takes from me the undoubted
right I have of directing the Applicat'n of the Money
rais'd for the Defense of the Dom'n. . . .'"^
This determination of the House to restrict the power
of the governor was brought into prominence again, when
the members attempted to prevent Dinwiddle from col-
lecting a fee of one pistole for signing and sealing land
patents. The Burgesses protested against the fee, and
the governor replied to the effect that his instructions
had authorized the collection of the fee. This was a
serious matter to the House, and the members planned
to carry the dispute before the home government. For
this purpose they appointed Peyton Randolph as their
agent, and voted to pay him £2,500. The Treasurer was
ordered to make this payment, even though the governor
and Council should refuse their assent. Robinson, who
served in the dual capacity of Speaker and Treasurer,
declared that he would make the payment if the House
authorized him to do so, but at the last moment his
courage failed him. Finally the favorite colonial device
of a rider was adopted. The governor wanted £20,000
more for military purposes. To a bill making the desired
appropriation, the House attached a clause authorizing
the payment to Randolph.^* Dinwiddle declared that the
use of the rider was unconstitutional, and rather than
accept defeat in this case, he prorogued the legislature
32 Dinwiddle Papers, I, 98, 100.
33 lUd., I, 156.
34 Dinwiddle 's story of this affair is told in a series of letters, Dinwiddle
Papers, 1, 44-47, 140-141, 160-161, 298-301, 307.
44 DEVELOPMENT OF LAWMAKING
without getting his money. He wrote to Abercrombie
that ' ' There is such a Party and Spirit of Opposition in
the lower Ho. y't it's not in the Power of the Gov'r to
suppress, unless he is to prostitute the rules of Gov't,
and act inconsistent with his Instruct 's. I have really
gone thorow monstrous fatigues, w'ch I sh'd not much
regard if I c'd answer the Com'ds of His M'y, but such
wrong headed People (I thank God) I never had to do
with before. "^^
After this outburst of righteous indignation, Din-
widdie waited until the following year before he made
any further requests upon the House of Burgesses. The
recess, however, had soured rather than sweetened the
tempers of the members. The discouraged executive
wrote that ''Our Assembly met the 29th Ult'o, but not
above one-half of them gave their Attendance. They fell
into Cabals . . . They further propos'd a Secret Com-
mittee, w'ch in course w'd have been the Beginning of
great Dissentions. They were likewise very mutinous
and unmannerly. ' ' Dinwiddle thereupon dissolved them,
and took the chance of an improvement after a new elec-
tion. At least, he wrote, the new House ''cannot be as
bad as the last."^^
Dinwiddle's complaints serve to bring out some of the
characteristics of the House of Burgesses and its inter-
nal organization. The "Secret Committee" which he
referred to was probably not unlike the "Junto" in
Massachusetts. Some such organization was evidently
guiding the House in its attempts to limit the power of
the executive in military and financial affairs. Then as
the authority of the House was gradually extended, the
importance of the Speaker-treasurer was greatly en-
hanced. Governor Dobbs of North Carolina even went
85 Binwiddie Papers, I, 300.
36 Ihid., II, 273.
PAETY OEGANIZATION 45
so far as to assert that * ' the Speaker as Treasurer rules
An analysis of the standing committee appointments
in Virginia brings out the interesting fact that member-
ship in those important groups was largely restricted to
the representatives from the tidewater counties. What
little evidence there is points to the control of legisla-
tive business by a ''ring," composed of the conservative
planters who really governed Virginia. Robinson's
power as Speaker rested partly on his control of finance,
and partly on his influence with this inner committee.
It was not only in the large legislatures of Massachu-
setts and Virginia that there appeared these manifesta-
tions of political manipulation. Even in Georgia the
assembly was effectively managed by a group opposed
to the governor. On one occasion in 1756 the executive
tried to put a stop to further proceedings on a certain
measure by sending a message to the Speaker ordering
him to adjourn the House. After the manner of colonial
legislatures, that body showed nothing but contempt for
his command. The Speaker's report of the episode is an
illuminating commentary on colonial legislative methods.
The governor sent in his message at ''about Elleven of
the Clock in the forenoon. ... As I took hold of it and
was going to rise it was seized in my hand by one of the
Members who said that I should not get it or should not
read it or Words to that Effect. I strugled for it, for
some time but was Obliged to Yield it Otherwise it would
have been torn I then stood up and declared that I
thought I had no right to set there as I was firmly per-
suaded the House was adjourned and that nothing that
could be done after that would be deem'd Valid and
therefore would leave the Chair then all or most of them
arose up and said they would Oblige me to keep the Chair
37 N. C. Col. Bees., V, 949.
46 DEVELOPMENT OF LAWMAKING
that I had no right to leave it without the consent of the
House, That the House was not or could not be adjourned
untill the Message was given at the Clerks table Read
by him and then adjourned by the Speaker that they
would set and Oblige me to set untill Twelve of the Clock
at night if the Business that was then on hand was not
finished before Many times afterwards I rose in order
to leave the chair and told them over and over that I
could not set or Act longer that we was no sitting Assem-
bly that every thing must be void that we did, but was
always Obliged to set down again They appointed Sev-
eral Committees I refused to chuse the Members they
chuse them themselves They did Several other Things
but I had no hand in them I kept silent, They read and
past a paper to address to his Excellency and offer 'd it
to me to sign which I absolutely refused (as I thought the
Assembly was adjourned) But they told me in a Com-
manding and Peremptory manner Sir you shall sign it
we will Oblige you to sign it you have no Right Sir to
refuse to sign anything that passes this House I again
told them I did not look upon this as a House at present
but all I could say was to no purpose I was Obliged to
sign it tho' I Publickly declare at the same time that I
was forced to do it that it was intirely Contrary to my
inclinations. ' '^®
The material outlined in this chapter bears out the
statement already made, to the effect that there always
are two types of organization in the average legislature :
the official, and the informal. The one looks after routine
work connected with legislative operations proper, while
the other decides what business shall be transacted in
any given session. Both forms are necessary, but the
more important is the party machine. Without such
leadership the assemblies would degenerate into mere
38 Ga. Col. Eecs., XIII, 100-101.
PARTY ORGANIZATION 47
debating contests, with no power of constructive action.
Undoubtedly a minute study of any colonial legislature
would yield results similar to those described here. In
at least two colonies, New York and North Carolina, the
power of the party committees was even greater than in
Massachusetts or Virginia, and the leaders in the legis-
latures were actually transacting considerable business
that really belonged to the executive.
NOTE TO CHAPTEE TWO
The following list of committees on important subjects appointed in the
House of Representatives in 1766-1767 shows how business was controlled
by the Boston members and a few other active Whigs. The names of the
Boston members are in capitals, and those of their party associates in
May 29. On the governor's speech: Gushing, Otis, Adams, Partridge,
Eawley, Saunders, Dexter.
June 3. On the governor's message: Gushing, Otis, Adams, Eawley,
June 4, To thank the king for the repeal of the Stamp Act: Gushing,
Worthington, Otis, Adams, Partridge, Dexter, Bourne.
June 10. To write to the agent, defending the course of Massachusetts
during the Stamp Act agitation : Gushing, Adams, Otis, Eawley, Partridge.
June 11. To make arrangements for opening the debates in the House
to the public: Hancock, Otis, Adams.
June 24. To reply to the governor with reference to an indemnity for
those who had suffered in the Stamp Act riots: Gushing, Adams, Dexter,
October 30. To report on the legality of the act of the governor in
causing certain Acts of Parliament to be printed in the province law book:
Sheaf e, Otis, Dexter.
October 30. On certain proclamations of the governor: Gushing, Otis,
Hancock, Sheaf e, Dexter.
October 31. On the governor's speech, regarding indemnity: Gushing,
Otis, Eawley, Dexter, Hancock, Sheaffe, Bowers.
November 5. To reply to the governor 's speech : Eawley, Dexter, Bowers,
To report on certain acts of the customs officials: Otis, Dexter, Eancock.
November 6. To frame the indemnity bill: Gushing, Eawley, Otis,
Ruggles (an active Hutchinson man), Dexter, D wight, Sheaffe.
November 13. To report on trade: Gushing, Otis, Hancock, Adams,
Sheaffe, Dexter, Brown, Hall, Boardman.
On letter from Shelburne: Gushing, Otis, Hancock, Brown, Adams.
48 DEVELOPMENT OF LAWMAKING
December 5. On resolutions regarding the indemnity bill: Eawley, Otis,
December 7. On trade: Gushing, Bourne, Sheaffe, Greenleaf, Brown,
December 9. On royal troops: Gushing, Otis, Sheaffe, Adams, Dexter.
February 3. On the governor's message regarding royal troops: Gush-
ing, Otis, Eawley, Sheaffe, Adams, Dexter, "Ward.
February 13. On the governor's message regarding the agent's salary:
Otis, Sheaffe, Dexter, Adams, Warren,
February 27. On the governor's message regarding Newfoundland
fisheries: Otis, Adams, Ward, Bowers, Gerrish.
March 3. To write to the agent regarding Hutchinson's attempt to sit
in the Gouncil after he had been dropped from that body: Eawley, Otis,
Adams, Sheaffe, Bowers.
March 18. To write to the agent: Adams, Dexter, Euggles.
THE ''JUNTO" IN NEW YORK AND NORTH
In the history of these colonial assemblies two facts
stand out very clearly : first, the lower house was almost
constantly engaged in a more or less serious controversy
with the executive; second, in the assembly there devel-
oped a form of unofficial organization more important
than that provided for by the rules. This condition of
friction tended to become chronic, and as a result the
party committee became more and more powerful. At
first it was nothing but a check on the governor ; it might
bring the wheels of government to a standstill, but it had
not acquired very much positive authority. A deadlock
in government, however, cannot last indefinitely; one
party or the other will eventually get the upper hand,
and in this case the legislature proved to be the victor.
As time went on the popular branch of the government
began to rise above the executive, and to dominate it.
The governor's hands were tied, and then some of his
power was taken over by the assembly. By controlling
the salaries of colonial officials, and by dictating certain
appointments, the lower house acquired considerable
influence in administrative affairs. But executive busi-
ness cannot well be handled by the whole legislature, so
the "Junto," which had long been the directing force in
legislative work, took charge of these new duties. When
a committee of prominent assemblymen makes up the
legislative program and also supervises and controls the
50 DEVELOPMENT OF LAWMAKING
executive, the resulting form of government is closely
akin to the parliamentary system of England.
In New York the "Junto" developed early, and even
before 1750 it had become so conspicuous and so influ-
ential that the governor was thoroughly alarmed. In
1747 Clinton sent to the Board of Trade a detailed
description of the government of the colony as it was
actually carried on. According to him, a certain Mr.
Horsmanden was a ''principal Actor in the Faction, that
had been formed in the Province to distress the Governor
and to gain the administration both. Civil and Military
into their own hands." Concrete evidence of the power
of this ' ' Faction " is to be found in ' ' the constant meeting
of a Committee of the Council and Assembly, who never
made any report of their proceedings, tho' the resolu-
tions of both. Council and Assembly were directed by
them. ..." Mr. Horsmanden was a member of this
committee, and drew up most of the papers prepared by
it. In working out its plans, the "Faction" tried to cur-
tail all supplies, and in addition it influenced the Assem-
bly to place all public funds at the disposal of their own
"Dependants," so that the governor might be deprived
of all power over expenditures. More important still,
they had induced the Assembly to assume full control
of the appointment of administrative officials, and of the
payment of their salaries. The governor was not even
consulted in these matters.^
A careful analysis of the situation as described in this
report shows that the "Faction" was more than a petty
political machine. It was actually the directing force
in the government. Party leaders in the legislature were
trying, with considerable success, to extend their power
over the executive department.
1 N. Y. Col. Does., VI, 670-671, September, 1747, abstract of evidence
in the books of the Board of Trade.
THE ^' JUNTO" IN NEW YORK 51
References to the aims, operations, and successes of
the '' Faction" appear in later letters of the governors.
In 1751, Clinton wrote to the Board of Trade that *'the
Faction in this Province continue resolute in pursuing
their scheme of assuming the whole executive powers
into their hands, and that they are willing to risk the
ruin of their country, in order to carry out their pur-
poses."- Golden reported practically the same situation
As the leaders in this attack upon the governor gained
more experience, their methods became more systematic
and effective. Money was granted and paid out under
the authority of the Speaker of the Assembly instead
of the governor. Salaries of royal officials were pared
down, while the adherents of the ''Faction" were liber-
ally rewarded for their loyalty.*
This assumption of financial power by the Speaker was
a perfectly natural result of the increasing importance
of the Assembly. Formerly, and legally, payments were
made under authority of the governor's warrant. With
the popular branch of the legislature in control of
finance, however, it was to be expected that the official
leader of that body would act as its agent in making
payments. The Speaker was not exactly the Chancellor
of the Exchequer, but it would have taken only a few
more years of uninterrupted development to have placed
him in such a position.
By 1766 financial operations had become so well sys-
tematized that Colden could make the following explicit
statement: "The ruleing Faction gain an absolute
influence over the officers of Government by the Sallary
of every officer being every year voted or appointed by
2 N. Y. Col. Docs., VI, 751, 752.
3 Ihid., VII, 705-706.
4 lUd., VI, 764-765.
52 DEVELOPMENT OF LAWMAKING
the Assembly, lessened or encreased, or refused, as they
like the Man in office, and the Fund is yearly raised &
applied for that purpose."^ It does not require very
much imagination to guess how this power would affect
the administrative system in general, and the governor's
position in it in particular.
Golden likewise sent to England a report in which he
described the component parts of this powerful political
organization. He said in the first place that there were
four different groups or social classes in the colony:
the proprietors of the large estates, the lawyers, the
merchants, and the small farmers and mechanics. The
first two groups, he wrote, were closely affiliated through
family ties. Then he went on to explain how the lawyers
were able to dominate the legislature. "The Gentlemen
of the Law some years since entered into an association
with intention among other things to assume the direc-
tion of Government by the influence they had in the
Assembly, gained by their family connections and by the
profession of the Law, whereby they are unavoidably
in the secrets of many Families — many Court their
Friendship, & all dread their hatred. By this means, tho'
few of them are Members, they rule the House of
Assembly in all Matters of Importance. The greatest
number of the Assembly being Common Farmers who
know little either of Men or Things are easily deluded
"By this association, united in interest & family
Connections with the proprietors of the great Tracts of
Land, a Domination of Lawyers was formed in this
Province, which for some years past has been too strong
for the Executive powers of Government."®
These quotations suggest the conclusion that the
5 Golden, Letters, II, 90.
6 Ibid., II, 68-78.
THE ''JUNTO" IN NEW YORK 53
''Faction," or unofficial legislative committee, was really
a Cabinet in a small way. It certainly impressed its
policies on the legislature, and if Clinton and Colden
can be trusted, it had contrived not only to control the
administration, but also to make the officials responsible
and subservient to itself. It is perfectly evident that
the system of government was very different from any-
thing provided for by charter, and also wholly unlike
the state governments established after the Revolution.
The real significance of this development was, however,
not apparent to the constitution makers of the latter
part of the eighteenth century.
Another excellent example of government by "Junto"
is to be found in North Carolina. In that colony the
strife between executive and legislature had been even
more bitter than in New York, and the popular branch
as usual got the better of the governors. Methods of
political manipulation had reached a highly developed
stage there, and the leaders of the House would compare
favorably with the expert managers in New York. In
this case, too, there was something more than mere
machine control; a new type of government was taking
shape, the distinguishing feature of which was the
supremacy of the majority leaders in the legislature.
In 1757 the "Junto" in North Carolina was directed by
four members of the Council, who entered into a gentle-
men's agreement to work together. Because of the small
size of the upper house, four men acting in common could
easily secure control. To get the necessary support in
the lower house, they allied themselves with the fairly
compact following of John Starkey, one of the Treas-
urers. He had taken upon himself the responsibility of
paying the members their salaries, and like a good
politician he made the most of his opportunities. By
judiciously advancing money or delaying payment,
54 DEVELOPMENT OF LAWMAKING
according to the nature of the individual case, he con-
trived to put enough members under obligation to himself
so that he could be sure of their votes when wanted. As
Governor Dobbs wrote, he could use his power as he
pleased, "so that all the low members who want a supply
follow him like chickens so that he sways the House
against the most sensible members in it.'" Murray, one
of the four councillors, drafted bills for this aggregation.
When their measures happened to be of such a nature
that they were assured of the governor's veto in advance,
they were attached to revenue bills, in the shape of
riders. Thus if their favorite measures were defeated,
they at least had the satisfaction of blocking the plans
In North Carolina the ''Junto" had become so firmly
established that its continued existence was not depend-
ent upon any particular group of members. On the
contrary, it had grown into a permanent institution,
which continued to live on in spite of changes in per-
sonnel. In 1760 the legislature was dominated by a
group of lawyers, whose object at that particular time
was to get control of the new superior court. Child, the
attorney-general, secured a following by promising
rewards to influential members in both chambers. To
Samuel Swann he promised one of the justiceships in
the court to be created. Swann approved of the plan,
whereupon he was put in as Speaker of the House. Then
the ''Junto" framed a bill for establishing a superior
court, in which they imposed such ingenious restrictions
for the judicial positions that only three men could
qualify : Speaker Swann, Barker, and Jones, all intimate
friends of Child, the chief operator. In order to make
sure of the governor's assent, the "Junto" refused to
7 N. C. Col. Eccs., V, 945-954.
8 Ibid., VI, 40-41.
THE ''JUNTO" IN NEW YORK 55
pass any revenue bill until the court bill had been ap-
proved. Thus at one stroke the "Junto" was depriving
the governor of his appointing power, and also extending
its power over the court.^
In the fall session of the same year the organization
again differed slightly in membership, but the methods
used were very much the same. In this instance the
controlling committee was composed of Samuel Swann,
the Speaker, his brother John in the Council, and
Starkey, the Treasurer. The chief issue was the choice
of a new colonial agent, and the "Junto" was anxious to
dictate the appointment. To guard against mishaps they
inserted in the tax bill a clause which would give the
position to their candidate. In the meantime, a new
Treasurer was to be appointed, for the northern district,
and the bill for that purpose was kept back until the
leaders in the House could learn how the Council voted
on the tax bill, with its agent rider. It was understood
that if Rieusset, a councillor, voted favorably, he would
receive the office of Treasurer by way of reward. With
his vote the tax bill passed the Council by a bare majority
of one, whereupon his name, according to agreement, was
inserted in the bill for appointing the treasurer."
The power of the "Junto" in the legislature was partly
secured through the control of the standing committees ;
in fact, they became mere instruments in the hands of
the leaders, by means of which their authority could be
9 N. C. Col. Eecs., VI, 243-251. Dobbs to the Board of Trade. The Jour-
nal of the House indicates that Dobbs was telling the truth. The committee
which framed the court bill was composed of Dewey, Child himself, and
Barker, one of the three who hoped to profit by the bill. Dewey was appar-
ently the lawyer referred to in Dobbs ' letter, p. 245, although it is not clear
whether he was one of the "Junto" or not. VI, 367. Jones, Barker, and
Starkey, all members of the "Junto," formed the committee which framed
the tax bill. VI, 392, 396.
10 2V. C. Col. Eecs., VI, 319-324; cf. House Journal in same volume. Tax
bill brought in November 17, passed third reading November 26; bill for
appointing the treasurer brought in November 29, pp. 479, 497, 502.
56 DEVELOPMENT OF LAWMAKING
more conveniently exercised. In 1760 the committees on
elections and on grievances were composed of the friends
of the "Junto," together with a few others who had been
put on to save appearances, and the proceedings in the
committee of grievances were kept secret." Moreover,
the standing committees of accounts and claims were
completely controlled by the House, and therefore by the
''Junto." The House usually appointed so many mem-
bers to these joint committees that the Council could not
hope to get an even representation.^^
This form of government seems to have been firmly
established in North Carolina, for as late as 1773
Governor Martin complained of the very same thing,
although in language more uncomplimentary than any
ever used by the gentle Dobbs. He asserted that the
North Carolina House consisted, for the most part, "of
men in the lowest state of ignorance, that are gulled
into absurdities by a few artful and designing men,
influenced by selfish and interested motives, who lead
them implicitly into their views by representing every
salutary proposition of Government as injurious and
oppressive . . . ; the poor misguided herd renounce out
of the House the sentiments they have but the moment
before blindly concurred in . . ." Again he refers to
"the few mischievous, but too successful Demagogues
who have hitherto governed the Assembly. . . ."^^
The ' ' Junto ' ' was the natural, inevitable product of an
extended controversy between representatives of two
different sources of authority. The causes of this quar-
rel are fairly evident. Friction would be sure to arise
between the two powers, popular and royal. Colonial
political leaders did not permit imperial problems to
11 N. C. Col. Bees., VI, 243-251.
12 Ibid., VI, 319-324. For the committee appointments see ibid., V, 1043,
13 Ibid., IX, 698-699.
THE ''JUNTO" IN NEW YORK 57
weigh very heavily upon their minds, and their point of
view was naturally somewhat provincial. With that
supreme self-confidence so characteristic of the new
world they felt that they were perfectly competent to
attend to their o\vn affairs, and they viewed with sus-
picion the attempts of the royal governors to obey
instructions from across the water. Their problems were
local, and if their interests sometimes conflicted with
imperial policy, so much the worse for the empire. If
new administrative measures or new revenue laws
seemed likely to have an unfavorable effect upon their
comfort or material prosperity, they could be depended
upon to protest with vehemence if not with actual
In addition to those weightier causes of difference,
personal rivalry and ambition played no inconsiderable
part in generating friction. Then as now aspiring politi-
cians were always on the lookout for issues by means of
which they might rise to positions of prominence. To be
sure there were opportunities for advancement in the
king's service, as the careers of Hutchinson and the
Olivers in Massachusetts clearly prove. But royal
appointments were relatively scarce, and rotation in
office was not an approved policy in those days. Jeffer-
son's disconsolate complaint concerning officers in the
civil service, that few die and none resign, would have
been applicable to the colonial administrative system.
Then, too, even the available places were not always open
to those ambitious but obscure young men who happened
to be without wealth, social standing, and influence in
high places. It was to men of this type that the lower
house of the assembly particularly appealed. The leader
of the party opposed to the administration might become
just as prominent and fully as powerful as the governor
58 DEVELOPMENT OF LAWMAKING
himself, and in addition he would be entirely free from
any embarrassing obligations to crown appointees.
As the champion of local interests, the popular branch
of the assembly naturally assumed the leadership in
opposing the governor. In a way the aggressive activity
of this body was both a cause and a result of the political
friction. It was constantly trying to restrict the field of
executive action, while at the same time it was carried on
to positions of greater prominence by the rising tide of
the struggle. This steady advance of the lower house is
one of the most important facts in colonial history of
the eighteenth century, as well as one of the important
causes of the American Kevolution. By 1760 it had
gotten into the habit of going its own way, and of doing
very much as it pleased, with little or no regard for the
advice or the recommendations sent down by the execu-
It seems fairly evident now that the royal regulations
and plans for colonial government are very unsafe guides
in a study of the systems actually in operation. Theo-
retically no change had taken place since the establish-
ment of the royal colonies, but the form alone was left.
In practice the governor had really ceased to be the head
of the executive department. If his recommendations
were not treated with open contempt, they were silently
ignored, and his authority in administrative circles had
almost disappeared. When he vainly tried to oppose the
legislature in its attacks upon his prerogative, he was
subjected to the additional and intensely real incon-
venience of going without his salary.
In brief, the assembly and the governor fought it out,
to determine where ultimate authority resided, and the
assembly won. That meant a transfer of power from
the representative of the prerogative to the popular
house. That body itself was too clumsy to perform the
THE ''JUNTO" IN NEW YOEK 59
duties which it had seized. Some device was needed
which could guide it in its deliberations and control it in
its action, and at the same time look after matters of
finance and administration. These obligations were
assumed by the leaders of the majority, the very ones
who were instrumental in building up the power of the
house at the governor's expense. As a result the line
of demarcation between the three branches of govern-
ment almost disappeared, and the control of all depart-
ments was virtually taken over by a powerful legislative
The gradual growth of this extra-legal, unauthorized
form of government in the British colonies takes on a
new significance when compared with constitutional
development in England. Similar forces produced the
Cabinet in one place, and the ''Junto" in another. After
the kings had been rendered powerless. Parliament, par-
ticularly the House of Commons, found itself saddled
with new obligations, for the proper performance of
which no machinery existed. After winning their vic-
tories the leaders in the House of Commons naturally
assumed these new burdens. They had really acquired
control of the government, and they forced the king to
recognize that fact by making them his ministers of
In England the system which had been forced into
existence by the constitutional conflict was welded into
permanent form by the peculiar conditions of the first
half of the eighteenth century. Because of his inability
to speak English on the one hand, and his gratitude to
the Whigs on the other, George I was perfectly willing
to make the party chieftains his ministers, and to turn
over to them the handling of governmental problems
which he could never understand. Even then the Cabi-
net system rested on nothing but a customary basis, and
60 DEVELOPMENT OF LAWMAKING
it was not until some years after this that the full signifi-
cance of the new regime was made clear.
In the colonies this trend in the direction of parlia-
mentary government had not made as much progress as
it had in England. Then the Revolution altered the
course of institutional development, and with one or two
exceptions put an end to further growth of this kind.
The change came about largely because the conditions
responsible for the exaltation of the legislature at execu-
tive expense had generally disappeared. Royal preroga-
tive had no longer to be reckoned with, and executive and
legislature both derived their authority from the same
source. Dangerous friction was therefore not likely to
arise. Equally important was the fact that the revolu-
tionary leaders had even less comprehension of the true
nature of colonial government than contemporary Eng-
lishmen had of the Cabinet system. Americans were
inclined to look upon the "Junto" as an ugly outgrowth
of disreputable politics, and they justified its use merely
because it seemed to be the only available weapon of
defense against the exercise of unjust power. They
never realized that as an organ of government it might
have tremendous advantages simply because it was a
perfectly natural development.
COMMITTEE DEVELOPMENT, 1776-1790
The years during and immediately after the Revolu-
tion were characterized by a really extraordinary activ-
ity in constitution making. By 1789 there were in opera-
tion the new fundamental laws drafted by eleven out of
thirteen states, together with the Federal Constitution.
To this list should be added the Articles of Confedera-
tion, in effect up to 1789. The constitutions are inter-
esting, not for their originality, but for the general uni-
formity of their provisions. They differed only slightly
from each other, and the forms of government which they
provided were, mutatis mutandis, very much like the
regular colonial systems. The Revolution did not cause
a general breaking away from past governmental tradi-
tions. People had been fairly well satisfied with their
institutions as a whole, and they fought, not to alter
those systems, but to put an end to what they regarded
as unjust meddling with them.
After taking steps to protect themselves against out-
side interference in their affairs, it is not surprising that
Americans fell back upon familiar precedents in making
the needed adjustments to changed conditions.^ It
should be pointed out, however, that the new constitu-
tions had far more in common with colonial polity as it
1 For a more detailed comparison of the colonial systems of govern-
ment with the new constitutions, see Morey, ' ' The First State Constitu-
tions, " in Annals of the American Academy of Political and Social Science,
IV, 201-232. "In their new constitutional enactments there was shown a
marked degree of conservatism, changes being made only to the extent
necessary to bring the new governments into harmony with republican
ideas, without violating too much the recognized traditions of the colonies, ' '
62 DEVELOPMENT OF LAWMAKING
was on paper than with the system of which the ' ' Junto ' '
was the central figure. In spite of a reputation for hard-
headed practicahty, and also in spite of the fact that both
professional politicians and ordinary voters must have
done considerably more thinking about the external form
of their government than they are wont to do, it appears
that the constitution makers did not take into account,
or at least did not analyze very carefully, the real signifi-
cance of that striking discrepancy between governmental
theory and practice before the war. The rise of the
"Junto" was accompanied by the practical overthrow of
the regular systems, and yet the possible bearing of this
development upon the operation of the new constitutions
seems hardly to have been considered. The "Junto"
must have been thought of, not as a normal, rational
institution, which had come into existence to meet certain
needs, but rather as the pathological product of a dis-
eased body politic. Certain it is that not one of the
constitutions was built up around the principal that a
powerful legislative committee should control all branches
of the government.
The most important change in the situation of the
Americans, that which made the people, or rather the
voters, the ultimate authority, had been brought about
by the war. As a result, the powers of the government
itself were no longer derived from two different sources.
The executive department, formerly the mainstay of the
prerogative, was set off from the legislature in accord-
ance with the current theory of the separation of powers,
although in many cases the governor was subject to the
control of the assembly.^ Then the upper house, which
had formerly been a part of the royal system, was made
zChanning, Hist, of U. S., Ill, 459; in the New England States the
governor was elected by the voters; in New York by £100 freeholders; in
Pennsylvania, by the Council; elsewhere by the legislature.
elective.^ Theoretically the governors of the states had
less authority than their colonial predecessors, but the
British appointees had rarely measured up to the stature
of the abstract executive of the charter. Actually the
new chief magistrates enjoyed just as much, and in some
cases far more, real power than had been wielded in
These alterations, which affected the executive and
upper house so slightly, hardly touched the lower house
at all.* The nature and functions of this particular
institution had been well understood in colonial times, so
that few changes were required. Theoretically perhaps
these popular branches had more power than the corre-
sponding bodies had enjoyed on paper before 1775;
actually they were probably possessed of less real author-
ity and influence than those assemblies which governed
the colonies before the Revolution.^
For a brief period after the outbreak of the Revolution
the internal structure of the legislatures remained almost
without change. The forms of procedure and organiza-
3 Morey, op. cit., pp. 221-223.
* Ibid., p. 220. ' ' In the organization of the Lower House, which had
always been the most republican branch of the colonial government, there
were few changes to make, except to give clearer definitions to its structure
and functions. The lower house, as organized in the first state Constitu-
tions, was thus a continuation of the lower house which already existed
in the colonies. ..."
5 The most important change at first was in size.
N. H. .
(1776) 90 (1784)
(1776) 200 )1785)
N. Y. .
(1776) 60 (1790)
64 DEVELOPMENT OF LAWMAKING
tion had been worked out in colonial times by the local
authorities, unhindered by royal interference or control,
and because these methods had been generally satisfac-
tory, they were taken over by the new state legislatures.
Lawmaking machinery, however, never stays put for any
great length of time, and even though they withstood the
great upheaval of the Revolution, the legislatures were
forced to work out new methods because of the pressure
of new business and new problems. The war had thrust
weighty and troublesome burdens upon the assemblies,
and the return of peace served rather to increase than
diminish their perplexities. There were claims to be
investigated, accounts to be settled, taxes to be raised —
from a people who had just fought a long war partly at
least to escape such obligations, and commercial arrange-
ments to be agreed upon between the states themselves
and with foreign powers. In short, new issues thrust
themselves forward, and to give them adequate atten-
tion the assemblies were forced to revise and elaborate
their procedure. Not all the legislatures were affected
in the same way, and each worked out its salvation
according to its own light, but in spite of minor diver-
gencies, the developments reveal a surprising uniformity.
The changes consisted partly in further growth along
lines marked out before the war, and partly in a broaden-
ing of the scope of committee activity.
Probably the greatest defect in procedure in the aver-
age colonial assembly had been the want of time-saving
schemes for dealing with petitions. Except in Virginia
they were customarily referred to small select commit-
tees, and for a few years after the war the old circuitous
method was continued. As time went on, however, the
legislatures began to appoint standing committees for
this work, and in that way the foundations of more
extensive standing committee systems were laid.
COMMITTEE DEVELOPMENT 65
Even in New Hampshire, where they were almost
unknown, standing committees were used for a time to
clear up the large amount of legislative work left by the
war. When fifty or more petitions were presented in a
session of only three weeks in length, a new method of
handling them was obviously needed." As early as 1777
a joint standing committee was appointed to consider all
petitions and applications for compensation from sol-
diers who had met with losses in the war.^ Although
these committees did not become permanent parts of the
organization, there were times when large amounts of
work necessitated the appointment of committees for a
single session. In 1785, two standing committees were
appointed, one on the petitions of sick and wounded sol-
diers, and the other on those of selectmen regarding town
affairs.^ But for some reason the New Hampshire
assembly avoided such committees as a matter of general
practice, and no more on petitions were appointed before
1790. In 1789 several members who were fully aware of
the value of the device made a determined attempt to
have created a regular standing committee on petitions.
According to the proposal which they made, all applica-
tions of that kind were to be referred for consideration
to a joint committee, which should determine whether or
not they were of suflScient importance to warrant fur-
ther attention. Rejection of a petition by this committee
would prevent its receiving any more attention in the
House. The measure was lost, by a vote of thirty to
twenty-two, and New Hampshire continued to refer her
petitions to separate select committees.^
In Massachusetts, on the other hand, where the stand-
6 N. n. state Papers, XX, 413 et seq., session from October 20-November
11, 1785, fifty petitions were presented.
7 N. H. Province Papers, VIII, 514.
8 N. H. State Papers, XX, 344, 346.
9 Ibid., XXI, 672.
66 DEVELOPMENT OF LAWMAKING
ing committee idea had taken root before the war, a
fairly elaborate system had developed by 1790. In 1777
standing committees were appointed to examine muster
rolls, accounts, and petitions relating to the sale of land."
By 1781 the group was enlarged to six, but the legislature
hesitated to commit itself to a permanent adoption of the
scheme. In 1785 a committee appointed to consider what
standing committees were needed, reported ''that it was
not expedient to appoint any" for that term, and the
House adopted the recommendation, apparently without
discussion." The amount of work had not fallen off, but
New England in general was skeptical on that subject.
The experience of getting along without them, however,
must have furnished excellent arguments for their re-
establishment, for in 1788 the General Court of Massa-
chusetts had a group of eight. Most of these were
appointed to handle petitions. There were committees
on petitions regarding the sale of land, abatement of
taxes, incorporation of new towns, new trials, and fishing
in certain rivers ; then there was one on accounts, one on
finance, and still another on the encouragement of "arts,
agriculture and manufactures.'"^ By this time it was
becoming the regular custom to refer all petitions relat-
ing to one subject to a single committee.
Massachusetts and New Hampshire represent the two
extremes of this phase of committee growth. Similar
developments were taking place at the same time in
other states, more extensive than that in New Hampshire,
and generally less so than in Massachusetts. Sometimes
there would be two or three such committees on petitions,
10 Mass. E. Journal, May 30, June 2, 1777, pp. 8, 10.
11 Ibid., May 30, 1785, p. 34.
12 Zftid., May 31, June 3, 1788, pp. 31-33, 44. This list remained prac-
tically constant for the next few years. In 1789 a new one, on the naturali-
zation of aliens, was created, June 1, 1789, p. 49. These committees were
COMMITTEE DEVELOPMENT 67
sometimes only one. But whether the groups of stand-
ing committees were large or small, they were all mani-
festations of this general movement, common through-
out the United States, toward a more efficient method of
transacting legislative business/^
In addition to this work on petitions, many of the state
legislatures took upon themselves the task of auditing
and passing upon the numerous accounts presented.
These included bills of individuals for supplies furnished
to the state, or for services performed, such as public
printing, caring for wounded soldiers and the states'
poor, or transporting goods for the army. In any well
organized government such matters would naturally be
13 There were no standing committees in Rhode Island and Connecticut.
In New York the grand committees were changed into small standing
committees, and to a certain extent they became active in this work on
petitions. N. 7. E. Journal, August 25, 1779, p. 6; March 7, 1786, p. 71;
February 12, 1787, p. 44; July 7, 1789, p. 7. The committee on trade had
New Jersey had no standing committee on petitions.
In Pennsylvania no new committees were appointed for this particular
kind of work, but the committee on grievances handled petitions. Pa. H.
Journal, February 26, 1779, p. 323; December 12, 1780, p. 550,
In Maryland the committee on grievances continued to handle petitions.
Md. H. Journal, November 13, 1782, p. 5; January 12, 1786, p. 94. Occa-
sionally a standing committee on all private petitions would be named;
op. cit., November 14, 1782, p. 6. A new committee on trade and manu-
factures handled some petitions; op. cit., November 30, 1781, p. 19; Novem-
ber 29, 1785, p. 27.
In Virginia the old committees were retained, but petitions regarding
land titles and probate matters were referred to the committee on courts
of justice, so that the committee on propositions and grievances was re-
lieved of some of its work. Va. E. of Del. Journal, 1785, pp. 12, 20, 29,
In North Carolina a joint committee on propositions and grievances was
created in 1781, and was regularly appointed thereafter. It handled nearly
all the general petitions. N. C. State Bees., XVII, 797.
In South Carolina from 1787 on there were some standing committees
on petitions; on grievances, S. C. E. Journal, January 29, 1787, p. 31; on
religion, ibid., January 30, 1787, pp. 35, 36; on public roads, bridges, etc.,
Hid., January 13, 1791, p. 18; on courts of justice, ibid., pp. 18-19.
In Georgia there was one standing committee on petitions. Ga. Eevol.
Bees., Ill, 18,
68 DEVELOPMENT OF LAWMAKING
referred for verification to officials of the Treasury de-
partment, but in 1780 the lower house preferred to keep
the closest possible oversight of all financial transactions.
Such accounts were at first referred to select committees,
as petitions had been, but before long standing commit-
tees were appointed to look after the work. The sanc-
tion of the committee was necessary before an account
could be paid. Naturally the committee was busy, so
busy in fact that arrangements had to be made which
almost changed its character from a legislative committee
to an administrative board. In Massachusetts and New
Jersey, for example, the members of the committee
received extra pay for their services, and in New Jersey
a permanent official who was not a member of the House
at all was appointed to serve on the committee." While
not quite as common as committees on petitions, com-
mittees on accounts were to be found in many state
Standing committees on petitions and accounts had
not been unknown in the colonial legislatures, and this
increase in their use simply indicates further develop-
li Journal Mass. H. of E., May 30, 1778, p. 11; June 12, 1778, p, 26.
The members of this committee received thirty shillings a day that year.
N. J. H. Journal, December 12, 1778, p. 63; June 12, 1779, pp. 147-148,
15 In Ne'v? Hampshire, after the state government was reorganized in
1784, the committee on accounts was dropped, but there was one before
that date; N. H. Prov. Papers, VITI, 82-83, 433-434.
In Massachusetts the committee was in use up to 1790; Mass. PL. Journal,
July 24, 1775, pp. 9, 46; October 29, p. 208, December 1, pp. 5-6; June 3,
1776, pp. 22; November 17, 1785, p. 301; May 31, 1788, p. 31.
In Connecticut, the ' ' Committee of the Pay-Table ' ' was apparently a
board rather than a legislative committee. Force, Am. Archives, Series 4,
Vol. Ill, p. 1022; Conn. PL. Journal, May 27, 1779, p. 21.
New Jersey, E. Journal, September 10, 1776, p. 6; October 24, 1787,
Pennsylvania, H. Journal, November 21, 1777, p. 162; March 16, 1791,
Maryland, no committee ; the work was probably done by the ' ' Intendant
of the Revenue," oi by the auditor-general; JI. Journal, November 13,
1782, p. 6.
COMMITTEE DEVELOPMENT 69
ment along familiar lines. Their value in the transac-
tion of routine business was so evident that before long
they were appointed to deal with some of the new prob-
lems left by the war. Of all the duties which were thrust
on the legislatures, perhaps the most difficult as well as
the most disagreeable were those connected with public
finance. Funds were imperatively needed for both civil
and military affairs, and the states were poor, and short
of hard money. Politicians of this era were obliged to
go slowly in order to retain the good will of their con-
stituents. In their eagerness to get money without
unduly burdening the taxpayers, the legislatures at first
resorted to the printing press, and practically all the
states were flooded with paper money that depreciated
almost as fast as it could be issued. To extricate them-
selves from the entanglements in which this course had
involved them, the governments tried to alleviate the evil
by receiving old notes in exchange for new, or by draw-
ing up ''depreciation tables." All attempts, however,
to fix the value of one issue in terms of the next were
fruitless, because none of them could be kept at par long
enough to serve as a standard.
After the unsatisfactory nature of these makeshift
remedies had been clearly demonstrated, the legisla-
tures were compelled to vote taxes, and to call for their
payment in real money. Before the war the budget had
in general been made up by the governor. His recom-
mendations would be submitted to the assembly, and
after discussion in committee of the whole house, taxes
would be voted. But after a few years on a depreciated
North Carolina, standing committee up to 1779; after that date the
work was done by auditors; N. C. State Bees., XIII, 915, 916; XVI, 21;
South Carolina, the committee was used in 1784, and thereafter. S. C.
H. Journal, February 24, 1784, p. 172; February 25, 1786, p. 130; February
2, 1787, p. 49.
Georgia, Bevol. Bees., Ill, 36; 72-73.
70 DEVELOPMENT OF LAWMAKING
paper basis, the financial affairs of the states were so
badly involved that no such simple method would answer.
Careful investigations and estimates had to be made
before the House could act, and in order to get the neces-
sary information committees were appointed. In sev-
eral of the assemblies by 1790 there were to be found
standing committees on ways and means, on finance, or
These predecessors of the modern committees of ways
and means were coming into general use between 1776
and 1790. Their evolution is both interesting and impor-
tant, because it shows how the institution could be
adapted to new needs. Because there were no colonial
precedents to serve as guides, the legislatures tried out
numerous experiments, and as a result the records reveal
much uncertainty and no little inconsistency with refer-
ence to the proper relations between committee and
house. For example, the assembly would appoint a com-
mittee to '^consider so far as is necessary all money
matters," and to ''report all such measures as they may
think expedient to be adopted for providing for the
exigencies of Government, and for restoring Public
Credit," and then name a second committee to prepare
a tax bill, and a third to consider the ''expediency" of
borrowing money and to report any other feasible
schemes for supplying the treasury.^^ It was only by
appointing various committees and assigning to them
sometimes one kind of work and sometimes several that
the ways and means committee was finally developed.
It was the result of experimentation, more or less uncon-
scious, which lasted over a period of several years.
In Massachusetts financial affairs were at first re-
16 Mass. H. Journal, June 4, 22, July 1, 1782, pp. 42, 47, 121, 148-149.
There was the same uncertainty in New York; H. Journal, September 7,
18, 1780, pp. 7, 25; the House first appointed a committee of ways and
means, and then a committee to consider means for supplying the treasury.
COMMITTEE DEVELOPMENT 71
ferred to select committees, and it was not until after
the reorganization of the government in 1780 that the
first standing committee of ways and means appeared.
In the first session held under the new state constitution,
a committee of nine was appointed by ballot to '' devise
Ways and Means" to supply the treasury, for military
purposes and contingent expenses/^ In order that the
committee might have at its disposal all available
information, papers from Congress regarding financial
matters were referred to it.^*
The very first reports submitted by the committee
reveal the fact that its appointment was one manifes-
tation of the spirit of monetary reform. It attacked the
root of the paper money problem at once, and urged the
repeal of every act which made bills of credit legal
tender. Later it proposed that one-seventh of the ' ' new ' '
money be bumed.^^ After working through the December
recess, the committee was ready with more recommen-
dations. In order to make the reform as effective as
possible, it urged first, a complete reorganization of the
treasury department, and then the enactment of a law
to insure a punctual collection of taxes. ^° Then, coming
down to the actual task of raising money, it laid the
budget before the House, so that the members might
have before them a concise summary of the amounts
needed for both civil and military affairs.^^ In a few
additional reports the committee suggested various
methods of raising money, and gave estimates of the
probable sums that might be realized from these sources,
such as, for example, imposts, excise, the sale of public
lands, and what not. Among other things a lottery was
17 Mass. H. Journal, November 22, 1780, p. 126,
isibid., November 23, 1780, January 3, 1781, pp. 133, 268.
-i-^IUd., December 2, 1780, January 15, 1791, pp. 172-173, 214.
20 Ibid., January 26, 1781, pp. 254-255.
21 Ibid., January 9, 1781, p. 196.
72 DEVELOPMENT OF LAWMAKING
recommended, and also a loan of £400,000 to complete
the total needed.^^ Of the bills which were drafted to
carry some of these measures into effect, the one for the
excise and impost taxes was framed by a special select
committee, although the rates adopted were those recom-
mended by the committee of ways and means ; the general
tax bill was drawn by the standing committee itself.^^
Such proposals involved radical reforms in the whole
department of finance, and apparently the committee
felt that its plans would be looked upon with disfavor.
Feeling called upon to justify themselves in the eyes
of their constituents, the members drew up an address
to the people at large, describing the actual state of
affairs, and setting forth the necessity of some such
action as that recommended.^* Evidently any measure
calling for the raising and spending of hard money
would be far from acceptable to the ardent lovers of
In thus attempting to restore order in the Treasury
department, the House of Representatives in Massa-
chusetts gave this first committee of ways and means
authority to make appropriations as well as to raise
money, thereby bringing about some degree of unity
in the financial transactions of the state.^'^ This method,
so different from the modern haphazard manner of
raising and spending money in the national House, was
adopted by the first federal committee of ways and
means, and was not abandoned until 1861, when the first
committee on appropriations was created. Thus in 1781
in Massachusetts the work of making up the budget,
raising money to meet those demands, preparing the tax
22 Mass. n. Journal, January 18, 19, 26, 1781, pp. 230, 233, 254-255.
23 Ibid., January 19, 23, 26, 1781, pp. 232, 242, 254.
2* Ibid., January 26, 1781, pp. 254-255.
25 Ibid., January 26, 1781, pp. 254-255.
COMMITTEE DEVELOPMENT 73
bill, and suggesting definite appropriations was all
attended to by a single committee.
During the next year, however, instead of one standing
committee, there was the usual series of select com-
mittees, none of which had any direct connection with
any other.-*' In 1782, although a standing committee on
finance was appointed, much of the work that should
have been referred to it was done by select committees.
The standing committee made general suggestions re-
garding the treasury department, looking toward reform,
and it made up the budget, but another committee framed
the tax bill, and appropriations were made by the House
itself.-^ For the next six years there was no standing
committee for financial work. In 1788, however, a com-
mittee on finance was appointed, and the next year a
committee on revenue. From that time on there seems
to have been some sort of a standing committee for
finance every year. In 1789, the committee on revenue
was appointed to inquire into government expenditures,
in order to see whether or not any reductions could be
made; to inquire into the amounts of taxes outstanding,
and of all other debts due the state; to find out what
changes in the revenue laws of the state were made
imperative by the new federal tariff law; to inquire into
the state of the treasury department and into all state
offices which were concerned with state finance; to call
on state officials for papers needed to furnish informa-
tion; to devise means for increasing the public revenue,
and to suggest measures for establishing public credit
on a firm basis.^^ And yet, in spite of this formidable,
2«Mass. H. Journal, September 13, 18, 21, 1781, pp. 189, 212, 231, 232.
27 lUd., June 4, 7, 8, 11, 22, July 1, September 30, 1782, pp. 42, 47, 54,
79, 121, 148-149, 215. A select committee was appointed to prepare the
tax bill, another to consider the expediency of borrowing money, and to
consider and report any other measures for supplying the treasury, and
still another to make up the list of appropriations for the civil list and
74 DEVELOPMENT OF LAWMAKING
array of work laid before the standing committee, select
committees were appointed to revise the excise laws, to
consider the ''expediency of issuing" a tax, the amount
to be raised, the proportion to be levied in specie, to
suggest the amount of the poll tax, to bring in the tax
bill, and finally to consider ways and means for paying
the civil list.^^ Not once again during the whole period
was there anything like real unity in the work, as there
had been in 1780 and 1781. The committee was in
process of development, and it took shape slowly.
In Pennsylvania there was a like period of experi-
mentation, but by 1790 the legislators seemed to have a
very clear idea of what their committee was expected
to do. Its reports included a detailed statement of the
condition of the treasury, with the amounts on hand,
those likely to be received, and the budget for the year,
carefully figured out to shillings and pence. A second
part of the report advocated both foreign and domestic
loans, and urged that more paper be issued. Finally, it
made general recommendations regarding the appro-
priation of the money raised by taxes and the domestic
loan, suggesting that it be used to pay running expenses,
warrants drawn by the late executive council, and
warrants drawn by the governor before that session.
After some changes had been made in committee of the
whole, a select committee was appointed to bring in a
bill for carrying the provisions into effect.'" Thus in
Pennsylvania the attempts to bring order out of financial
chaos resulted in the establishment of a systematic,
businesslike method of handling the problems of revenue
28 Moss. E. Journal, June 3, 1789, p. 41.
29 Ibid., June 22, 1789, p. 125 ; January 19, 28, February 18, 26, 1790,
pp. 175, 204, 261, 287.
30 Po. H. Journal, December 30, 1790, p. 54; January 11, February 8,
23, 26, March 1, 1791, pp. 84-85, 162, 215, 226-231.
COMMITTEE DEVELOPMENT 75
Another good example of a well-developed committee
of ways and means was to be found in South Carolina.
From 1783 to 1790 the committee was regularly used,
with less uncertainty and more consistency than there
had been in Massachusetts. In addition to making
general recommendations regarding the management of
finance, it made up the budget, proposed new taxes,
framed tax bills, and suggested appropriations.^^
In North Carolina, too, from 1784 to 1790, there was
an important joint committee on finance or on revenue,
the duty of which was to collect and lay before the
assembly information regarding public finance. It made
up the budget, but revenue bills were framed by the
all-important committee on public bills.^^ After its
appointment, the committee on finance divided itself into
several subcommittees, to each of which was assigned
a definite share of the work. One division, for example,
would be concerned with the condition of the revenue,
and with the budget; another would look up and report
how the public funds had been used during the preced-
ing year, while another would report on the condition
of the foreign debt, and so on. Sometimes there were as
many as nine of these subcommittees.^^
SIS. C. H. Journal, January 25, February 18, 22, 1783, pp. 40, 174-
175, 202, February 17, 25, 1784, pp. 125, 175; February 18, 1785, pp.
151-152; February 11, 1786, pp. 43-44; February 25, 1786, pp. 121-125;
January 25, 1788, p. 64.
82 In 1786, when the committee on public bills was temporarily deprived
of some of its functions, the committee on finance did frame the tax bill;
N. C. State Bees., XVIII, 279, December 6, 1786; ordinarily the committee
on public bills did the work; XX, 491; XXI, 214.
For reports of this committee on finance, see N. C. State Bees., XVIII,
280-282; XXI, 141-147.
33ivr. C. state Bees., XVIII, 282-283; XXI, 634.
In Virginia there was a standing committee of ways and means for
two years only, 1779-1780; it suggested methods of raising money, and
framed the revenue bills. Va. H. of D. Journal, November 9, December
10, 15, 1779, pp. 47, 83, 90-91. After 1781, financial measures were brought
up and discussed in the committee of the whole house.
In New York, a standing committee of ways and means was regularly
76 DEVELOPMENT OF LAWMAKING
In addition to the committees for handling petitions,
accounts, and finance, there were others that fore-
shadowed the later custom of appointing standing
committees on matters of general importance in the
state. After the war the legislatures had time to devote
their attention to internal affairs, such as manufactures,
roads, or agriculture, and their increasing interest in the
general welfare is indicated by the creation of new com-
mittees. In Massachusetts, for example, in 1788 and
thereafter, there was a standing committee for the
encouragement of arts, agriculture, and manufactures.^*
Similarly in Maryland, a new committee on trade and
manufactures was appointed, whose duty it was to
examine proposals for the establishment of manufac-
tures, and to consider and report the best method of
starting manufactures, and of promoting trade and
commerce.^^ In Virginia the committee on trade had
been allowed practically to die out during the war, but
in 1783 it was reestablished under the name of the com-
mittee on commerce.^'' It was ordered to take into
consideration all matters relating to ''trade, manufac-
tures, and commerce," and to suggest ''occasionally
such improvements as in their judgment may be made"
appointed, but it did little work. In 1779 it drew up the tax bill, and also
the general appropriation bill, but other important financial work was
turned over to select committees. N. Y. H. Journal, August 25, 27, Septem-
ber 21, October 18, 1779, January 27, 1780, pp. 7, 10, 32, 74, 88. In 1787
the committee of ways and means drew up the annual tax bill, but in other
sessions, although it was regularly appointed, select committees did the
In New Hampshire, Ehode Island, Connecticut, New Jersey, and Georgia
there was no standing committee on ways and means or on finance.
Si Mass. H. Jmrnal, May 31, 1788, pp. 31-33; June 2, 1790, p. 46.
35 Md. E. Journal, May 6, 1783, p. 2; November 15, 1785, p. 2.
36 During the war the committee on trade had almost nothing to do, and
the work formerly done by the committee on claims was turned over to it.
In 1783 the name of the committee on trade was formally changed to that
of the committee on public claims, and a committee on commerce was
appointed. Va. H. of D. Journal, November 27, 1779, p. 73; May 19,
1783, p. 12.
COMMITTEE DEVELOPMENT 77
with reference to these interests. In North Carolina for
two years there was a standing committee on Indian
affairs, to which was referred business relating to the
western frontier, but it was dropped after the committee
on public bills took charge of all public questions of that
kind." In South Carolina, in 1791, a standing committee
on '^ Public Roads, Bridges, Causeways, and Ferries"
was created, to which petitions dealing with such matters
might be referred.^*
Along with this increase in the number and variety
of standing committees there was a corresponding
enlargement of the field of their activity. During the
colonial period the House of Burgesses of Virginia was
the only assembly in which bills were drafted and
amended by standing committees. After 1776 that
practice was continued there, and it was also taken up
in some of the other states, particularly in Massachu-
setts, New York, Pennsylvania, and the Carolinas. As
the standing committees increased in number it was only
natural that they should be given work which dealt with
the actual processes of lawmaking.^^
The most interesting and unique change in any
assembly took place in North Carolina, where a peculiar
system developed, the outgrowth partly of the regular
committees in use during the colonial period, and partly
of the ''Junto." The authority exercised by the in-
formal committee of party leaders was transferred to
a regular standing committee, on public bills. The
members of this new committee were the leaders of the
legislature, and they formulated the policy to be pursued,
3T N. C. state Bees., XXI, 12, 211.
38 S. C. H. Journal, January 13, 1791, p. 18.
39 The following are not isolated cases, but examples. Mass. H. Journal,
June 5, 1782, p. 54; June 20, 1789, p. 121. N. Y. H. Journal, February 6,
1781, p. 11 ; January 29, 1784, p. 20. Pa. E. Journal, February 15, 1781,
p. 570; January 11, 1791, pp. 84-85. N. C. State Bees., XVIII, 279; XXI,
45. S. C. H. Journal, February 6, 1784, pp. 72-73.
78 DEVELOPMENT OF LAWMAKING
and determined what action should be taken on important
matters. Like the English Cabinet, it was evidently a
system of ''machine" rule which finally received formal
This period between 1776 and 1790 rather than before
is the time when the standing committee really came into
extensive use. Legislators in several of the states had
become familiar with the possibilities of the institution,
and as they began to appreciate its value, they enlarged
their groups of committees to meet new needs. To be
sure in some of the states very few changes took place.
New Hampshire, Rhode Island, and Connecticut had no
standing committees in 1790, and the legislatures in New
Jersey, Maryland, and Georgia were not very well
supplied. Surprising as it may seem, the system in
Virginia in 1789 was practically the same as it had been
in 1769. The standing committees had not increased in
number, and there was no important variation in the
kind of work done. Institutions in Virginia were the
product of a long period of slow, steady development,
and changes came slowly. The greatest increase in the
number of committees took place in Massachusetts and
in South Carolina. In 1775 Massachusetts had only two
standing committees, while in 1789 she had eight, and
in South Carolina between 1776 and 1791 the number
increased from one to six.*^
40 Because of its peculiar relation to constitutional history, this com-
mittee on public bills will receive fuller treatment in the next chapter.
iiMass. H. Journal, July 24, 1775, p. 9; September 21, 1775, p. 110;
May 29, June 2, 1789, pp. 21, 35-36, 39, 49. The eight were: committee
on accounts, on petitions for the abatement of taxes, on petitions for the
encouragement of agriculture and manufactures, on applications for the
incorporation of towns, on applications for new trials, on petitions regard-
ing the sale of real estate, on petitions for naturalization, and on finance.
S. C. E. Journal, September 18, 1776, p. 7, committee on privileges and
elections; January 11, 12, 13, 18, 1791, pp. 7, 15, 18-19, 59, committees on
privileges and elections, accounts, religion, public roads, bridges, etc., courts
of justice, ways and means.
COMMITTEES ON LEGISLATION, AND THE
COMMITTEE ON PUBLIC BILLS IN
Although it brought about practically no direct change
in the functions or strictly formal organization of the
lower house, the Revolution did affect that extra-
constitutional development which had acquired so much
importance during the later colonial period. The execu-
tive and legislature no longer represented two opposite
political systems; on the contrary both looked to the
voters as the ultimate authority, and ordinarily both
the governor and the majority in the assembly were of
the same political faith. As a result constant friction
gave way to a more or less friendly cooperation, and
these two branches of the government were free to devote
themselves to their proper duties. The strife of the
colonial period had given to the legislature that highly
centralized type of organization of which the '* Junto"
was the characteristic feature. After 1776, when the rep-
resentatives of the voters were no longer compelled to
spend the greater part of their time in a controversy
with the governor, party machinery played a somewhat
less conspicuous role than before. The primary need
of all the legislatures was a system that would facilitate
the transaction of ordinary business, of which, because
of the war, there was an unusually large amount. Thus
the colonial ''Junto" had generally dropped out of sight
80 DEVELOPMENT OF LAWMAKING
along with the conditions responsible for its origin, and
in its place there appeared a collection of standing
committees. Because of a combination of circumstances,
therefore, which found expression partly in the new
state constitutions based on the theory of the sepa-
ration of powers, and partly in the committee form
of legislative organization, the tendency toward parlia-
mentary government, with one important exception,
In order to put the system on a surer footing, it would
have been necessary to change the ''Junto" from an
unofficial, self-constituted body into a regular standing
committee, and to confer upon it power to control
all departments of the government. In North Carolina
such a committee actually came into existence, not as
the result of any provision in the Constitution, but rather
as a product of legislative procedure. This committee
on public bills, or ''Grand Committee," as it was some-
times called, was composed of the leading members in
both chambers of the assembly. It resembled the British
Cabinet in the extent of its authority over the govern-
ment in general, and in its influence in the legis-
lature in particular; it differed from that body chiefly
in that its members were not made heads of executive
Although this committee did not become prominent
until after 1780, it first appeared in North Carolina in
1776, and at that time it was very much like similar
committees that were being used in New Hampshire,
Massachusetts, Pennsylvania, South Carolina, and
Georgia. For want of a better name they may be called
committees on legislation. They were not standing, but
select, nevertheless they had prescribed duties to per-
form, so they may be considered parts of the systems.
COMMITTEES ON LEGISLATION 81
In some cases they were joint committees, in others they
were composed of House members only.'^
According to the resolutions adopted at the time of
their appointment, these committees on legislation were
expected to draw up and lay before the assembly an
outline of the work to be done during the session. They
would make out lists of bills which in their opinion ought
to become laws, and also call to the attention of the
legislature other matters concerning which action was
desirable. The duties of the committees were practi-
cally the same in all states. In New Hampshire, for
instance, the committee was ordered ''to examine and
see what Laws of a public nature would be beneficial to
be passed." In Massachusetts, it was appointed to
consider and report on the business which ought to come
before the General Court, and in Pennsylvania to report
to the House "what laws it will be most immediately
necessary should be passed at this session." In fact,
the order of any one assembly to its legislation committee
might equally well have applied to all."
The real nature of the committee is to be seen most
clearly in the reports which it submitted, and here again
the close resemblance of the committees in the various
states stands out plainly. The report would recommend
certain new laws, perhaps to enforce the payment of
1 AT'. H. Prov. Papers, H. Journal, VII, 69, June 13, 1765, 1st appoint-
ment. Ibid., VIII, 81-82, March 7, 1776. Joint after 1776. Mass. H.
Journal, June 24, 1777, p. 36. Ibid., June 17, 1778, p. 30. Ibid., October
28, 1780, p. 25. Joint after 1780. Pa. H. Journal, May 22, 1777, p. 138.
Appointed only once. House only. N, C. St. Eecs., H. Journal, XII, 289,
November 22, 1777. Joint. S. C. H. Journal, March 29, 1776. House only.
Ga. Bevol. Eecs., H. Journal, III, 35-36, January 2, 1782. House only.
In New York, throughout the whole period, 1750-1790, a committee was
regularly appointed to report to the House temporary laws which needed
to be renewed, and also to suggest any new laws that might be needed.
But the committee confined itself to reporting laws which needed renewal,
and only once did it suggest a new one. N. Y, H. Journal, January 7, 1773,
2 Eeferences as in note 1.
82 DEVELOPMENT OF LAWMAKING
taxes, to regulate the militia, or to reorganize the
judiciary. Then, in addition, the committee would call
the attention of the assembly to other necessary work,
such as issuing commissions to certain judges, drawing
up general orders for troops, disposing of the gun-
powder owned by the state, or selling a ship which had
been employed in naval service.^ In all cases the report
of the committee became the program for the more
important work of the session. Because of the fact that
it proposed the enactment of new laws, it was of a
different nature from the well-known "steering com-
mittee," which simply arranges in order work already
before the House, so that important measures will not
In the colonial period the governor regularly made
suggestions with reference to new legislation, and this
custom was continued after the state governments were
organized. In view of the fact that the governor was
no longer the representative of an outside power, it
would naturally be supposed that the committee on legis-
lation would cooperate with him in this work, or at least
that his speech or message would be referred to the
committee. Cooperation may or may not have taken
place, but in only two states, New Hampshire and North
Carolina, was the message regularly referred to the
committee on legislation.^ Elsewhere, with some excep-
sN. E. Frov. Papers, H. Journal, VIII, 133-134, June 6, 1776. Mass.
B. Journal, May 30, 1783, p. 23. This is the first report entered in the
Journal, although the committee had been regularly appointed since 1777.
S. C. E. Journal, August 1, 1783, p. 11. Ga. Eevol. Bees., Ill, 157-158,
July 28, 1782; 204-206, January 11, 1783.
* The ' ' steering committee ' ' is not a modern institution by any means.
In 1571 a committee was appointed "for appointing such bills for the
common-weal as shall be first proceeded in, and preferred before the
residue ..." Commons Journal, I, 86, April 16, 1571; Jameson, 249.
5 N. E. St. Papers, XX, 413, October 20, 1785. In one case the message
went to a separate committee, ibid., XXI, 597-598. After 1781, in North
Carolina, the message was always referred to the committee. N. C. St.
Bees., XVII, 638-639, January 29, 1781.
COMMITTEES ON LEGISLATION 83
tions in Massachusetts, the governor's commnnications
were placed in the hands of separate select committees,
or given over to the committee of the whole house. The
recommendations of the governor bore directly on the
work of the committee on legislation, and it seems
strange that a separate committee should have been
appointed to report on his message. Evidently the
different parties concerned were more interested in
receiving suggestions from all possible sources than in
a coordination of effort. The legislature looked to the
governor for advice, but it seems to have felt that he
might neglect certain important matters. To guard
against omissions, the members supplemented the
governor's message with a report of one of their own
The practically simultaneous appearance of these
committees indicates common conditions in the legis-
latures of widely separated states. In New Hampshire
the committee was in use during the decade before the
Revolution ; but in the other five states where it appeared
it came into existence sometime between 1775 and the
end of the war. Apparently the idea came from the
colonial ''Junto." For several years the assemblies had
entrusted the task of arranging their business and
guiding their activities to a few prominent members.
That practice became a habit, so that formal provision
was made for the compilation of programs for the
sessions. The need for expert guidance of some sort
was evident after 1775. The legislatures increased
enormously in size, sometimes to double or treble the
former membership. Firmly convinced of the value of
general representation, the people determined to have
plenty of it. These large legislatures must necessarily
have included numbers of inexperienced members, who
would be obliged to follow the lead of their trained
84 DEVELOPMENT OF LAWMAKING
colleagues. In order to prevent the new members from
losing themselves in the maze of procedure, the legis-
latures found it desirable to appoint a committee to
arrange the business, so that the more important items
at least would receive attention.
For some reason the movement which brought these
committees into existence lost its momentum, and with
one exception they never advanced beyond the starting
point. In some states they lived along, playing a small
part from session to session, while in others they quietly
dropped out of use. In New Hampshire its most
flourishing period was from 1765 to 1784; after the
reorganization of the government in that year, the
importance of the committee declined, and its reports
were no longer entered in the Journal. In Massachusetts
there was little change, one way or the other. In
Pennsylvania it was appointed only a few times, because
there the president and council were directed to do such
work. In South Carolina it disappeared before 1790.
This development is of some interest, not because of its
intrinsic importance, which was slight, but because it
shows by what a narrow margin the other states escaped
the adoption of a system like the one that developed in
This tale of aimless drifting and subsequent decline
does not apply to North Carolina. There, instead of
lingering on as a semi-useless select committee, the
6 The Journal does not prove that the legislation committee in North
Carolina became standing before 1783. In other states, proof that it did
not become standing is to be found in subsequent appointments of similar
committees during the same session. In New Hampshire always and often
in Massachusetts a second committee would be appointed near the end of
the session, to gather up the loose ends and report on the business yet to
be done. In South Carolina and Georgia the reports of the committee
would be referred to other committees for consideration, and the first one
never reported again. N. H. St. Papers, H. Journal, XX, 371, June 17,
1785; Mass. H. Journal, October 18, 1783, p. 264; S. C. H. Journal, August
1, 1783, p. 11; Ga. Bevol. Bees., H. Journal, III, 158-159, July 28, 1782.
COMMITTEES ON LEGISLATION 85
committee on legislation came to be not only the most
important standing committee in the assembly, but a
powerful executive body as well, so that its members
really governed the state. Yet, during the first few years
of its existence there it differed in no respect from simi-
lar committees in other states. But in North Carolina
the committee was kept busy. Not only the governor's
message, but all state papers were referred to it, so that
its reports included all the important measures upon
which action had to be taken. The policy of concen-
trating the most important work in the hands of
one committee naturally forced that committee into
The committee on public bills, as the committee on
legislation came to be called in North Carolina, first
appeared in the Provincial Congress of 1776, a nameless,
select committee, similar in all respects to the com-
mittees on legislation in the other states.^ When the
state government was organized in 1776, a similar
committee, made up of members from both houses, was
appointed in the new legislature.* In 1781 and there-
after the governor's message with its accompanying
public papers was referred to it.^ So far, however, the
committee was not much, if any, more important than
the corresponding committee in New Hampshire. But
by 1783, as repeated references in the Journal show, it
had taken the long step forward of becoming a standing
committee. By 1784 it was acquiring a name, another
step in advance. Its contemporaries never had a dis-
tinctive title, but this one was coming to be known as
the committee on public despatches, or on public bills, or
sometimes as the ''Grand Committee." From 1784 on,
with the exception of one year, this ' ' Grand Committee, ' '
7 N. C. Col. Eecs., Journal, X, 546, April 29, 1776.
8 N. C. St. Bees., XII, 289, November 22, 1777.
9 Ibid., XVII, 637, 638, January 28, 29, 1781.
86 DEVELOPMENT OF LAWMAKING
composed of fifteen or twenty of the leaders in both
chambers, was the most important factor in the whole
governmental system of North Carolina.
An analysis of the resolutions regarding it, of the
subjects referred to it, and of the work which it did in
1784 shows the comprehensive field which it covered.
According to the Journal entry, in addition to making
out a list of new bills that were needed, the committee
was ordered *Ho examine the message of His Excellency
the Governor, together with the papers accompanying
the same, and report what measures are necessary to be
taken in consequences of the intelligence they convey. "^°
The documents referred to the committee covered
subjects of the most varied character and of the greatest
importance. The governor's message itself dealt with
numerous matters which concerned both local and
foreign interests of the state. In the first place, it
requested the assembly to take action on the proposal
to allow Congress to collect an import duty in North
Carolina ; in addition, the governor urged that attention
be devoted to such matters as trade, navigatian of the
rivers, and education; he also submitted for amendment
a recent law regarding the land office." The papers
which accompanied the message included a copy of the
treaty of peace with England, and certain recommen-
dations of Congress relating to it, a copy of the treaty
between the United States and Sweden, and the British
proclamation by which American trade with the West
Indies was restricted. Not long after, an important
petition regarding the claim of an Englishman to certain
land in North Carolina was referred to it.^^ The next
day, another message of the governor, accompanied by
more papers from Congress, was given to the committee.
10 N. C. St. Bees., XIX, 542, H. Journal, May 3, 1784.
11 Ibid., XIX, 494-499, 501, April 20, 1784.
12 Ibid., XIX, 502, April 21, 1784.
COMMITTEES ON LEGISLATION 87
These papers had reference to land claimed by for-
eigners, and to the restoration of property to a loyalist.
On the same day, the House ordered the committee to
consider and report for what purposes the fines and
forfeitures in the Superior Court should be appro-
priated.^^ The committee therefore was expected to deal
with questions concerning the whole range of govern-
mental activity : local affairs, such as finance, commerce,
navigation, and education; relations with the United
States on matters of revenue, commerce, and treaties
with foreign powers; and, finally, direct relations with
subjects of a foreign nation concerning land claimed in
the state. In its meetings the members must have dis-
cussed every vital matter of public interest, and it is
clear that a report of the committee was a necessary
preliminary step to any important legislative act.
The long detailed reports comprised the committee's
recommendations upon the various topics referred to it,
and really constituted a definite and explicit statement
of the domestic and foreign policy of the administration.
The report of 1784, which may be taken as typical, dealt
with important questions relating to both local and inter-
state affairs. As regards the policy of North Carolina
toward the United States, it recommended among other
things that North Carolina agree to the suggestion that
Congress be allowed to collect import duties in the ports
of the state, that Congress be allowed to regulate foreign
trade, that provisions be made for straightening out the
tangled condition of finance, that the western lands be
ceded to the United States, and that the state repeal
those laws which would prevent carrying into effect the
terms of the treaty with England. Concerning state and
local matters, it recommended: the passing of laws for
a tariff on negroes and merchandise imported into North
13 N. C. St. Bees., XIX, 505, 506, AprU 22, 1784.
88 DEVELOPMENT OF LAWMAKING
Carolina, and for a tax on such luxuries as billiard
tables, playing cards, and dice ; the passing of new laws
regarding highways and navigable rivers, taverns, elec-
tions, and public buildings ; a recommendation was also
made regarding relations with another state, in connec-
tion with the southern boundary."
These reports of the committee furnished the assembly
with its legislative program for the session, and the
measures suggested by it were generally adopted. That
would naturally be the case, because the committee's
report was nothing but the clear and definite statement
of the purposes and policies of the assembly leaders.
They determined what action ought to be taken, and
then saw to it that these measures were approved by the
assembly. In 1784, out of proposals for eighteen specific
bills, fourteen were introduced during that session."
The subjects referred to the committee, together with
its reports, show how intimately connected its members
were with every question of public importance. But it
was not alone in the fields of general policy and of
legislations that the committee on public bills was
practically supreme. It had in addition general over-
sight of the whole administrative system throughout the
state. The new constitution had vested considerable
executive authority in the legislature, and thus indirectly
14 N. C. St. Bees., XIX, 542-547, May 13, 1784.
15 It is clear that in 1787 at least the management of the assembly was
vested in a kind of inner committee, of about twelve men. In that year, the
finance committee (see chapter IV), which was appointed as usual, was soon
fused with the committee on public bills. The reason given for this con-
solidation was that "the whole of the Gentlemen who act on one are mem-
bers of the others." N. C. St. Bees., XX, 192-193, December 5, 1787. But a
comparison of the two committees shows that only about half of those on
the finance committee were members of the other, Hid., pp. 128, 124, 125,
126, 136, 152, 188; the finance committee was composed of 19 House, and
9 Senate members, while the public bills committee was composed of 14
House and 9 Senate. Only 8 House members and 5 Senators were on both
committees. The statement quoted above indicates that the actual control
of affairs was in the hands of these few men.
COMMITTEES ON LEGISLATION 89
it conferred more power on this joint committee. In the
first place the governor was elected by the assembly, so
he must have been on friendly terms with the influential
members in that body. Moreover the legislature ap-
pointed judges, military officers, and also the Attorney-
General, Treasurer, and Secretary of State." This ap-
pointing power naturally made all the important officials
responsible to the assembly, or in other words, to the
committee on public bills.
Thus in North Carolina a joint standing committee,
composed of the most prominent members of the party
in power, formulated the policy of the government with
reference to local and foreign affairs, supervised finance,
decided upon the legislative program, and, in addition,
through the appointing power, directed the adminis-
tration. It would be difficult to point out any power
possessed by the British Cabinet that was not exercised
by the committee on public bills. The essence of parlia-
mentary government is the management of both legis-
lature and administration by a joint standing committee,
composed of the political leaders of the party in power,
responsible to the legislature which it guides and
directs. These conditions were fulfilled in North Caro-
lina. The chief difference between the systems in
England and in North Carolina was the fact that in the
British Cabinet legislative control over the administra-
tion is direct, because the members of the Cabinet are the
heads of the executive departments, while in North Caro-
lina the control of the committee on public bills was
16 Thorpe, Am. Charters and Consts., V, 2787-2794, especially articles 13,
14, 15, 22, 24.
For other reports, see N. C. St. Bees., XX, 491-492, November 10, 1788;
XXI, 214-215, November 9, 1789; XXI, 889, November 5, 1790.
For lists of public papers referring to it, see ibid., XX, 128-130, Novem-
ber 21, 1787; XXI, 16-17, November 7, 1788; XXI, 69, November 19, 1788;
XXI, 876-879, November 2, 1790; XXI, 911, November 12, 1790.
90 DEVELOPMENT OF LAWMAKING
indirect, based on the appointing power. The net result,
however, was the same in both cases.
The interesting fact about this system in North Caro-
lina is it was not an importation from abroad, but a
purely native growth. Indeed it is doubtful if the North
Carolinians knew what the British form of government
really was, so they could not have copied if they would.
The origin of the committee on public bills is to be found,
not in foreign, but in local, legislative procedure. Before
1776 the government to all intents and purposes had been
carried on by the leaders of the popular party, but their
power was based on personal influence alone. There
was no regular institution like the Cabinet to give
permanence to the system. This defect was remedied
after 1776. In the first place the governor was made
constitutionally subject to the assembly, and the extra-
legal ''Junto" was transformed into a formal standing
If there is anything surprising in this duplication of
what has always been considered a peculiarly British
institution, it is that more of the states did not stumble
on the same thing. Massachusetts and New York with
their systems of government by "Junto" both came
dangerously near it before the Revolution, and no less
than six legislatures had committees like the progenitor
of the "Grand Committee" in North Carolina.
The appearance of this type of government, however,
has left no trace on the growth of American institutions.
For that very reason it is difficult to refrain from specu-
lating on what might have happened if the system had
grown up in Virginia, the state which had so much
influence in casting the government of the United States
in its present mould. If James Madison, the political
scientist of the Federal Convention, had been as familiar
with this development as he was with the dead systems
COMMITTEES ON LEGISLATION 91
of ancient Greece and Rome, he might have urged a
similar scheme upon the constitution makers of 1787.
As it was he had devoted himself so completely to a study
of the faults and defects in foreign governments that he
had made no attempt to analyze certain very interesting
political phenomena just across the border of his own
THE COMMITTEE OF THE WHOLE HOUSE
While somewhat of a misnomer, the term ''committee
of the whole house" has been accepted in legislative
parlance as the approved designation for an informal
sitting of a lawmaking body. It is really not a committee
at all, but a meeting of the house itself, conducted under
rules different from those of the formal sessions.
Restrictions on the number of speeches a member may
make are removed, so that debate is free, and the pre-
siding officer may be any member selected for the
occasion, except the Speaker. The purpose of such a
session is to enable the members to thresh out a question
more completely than could be done under the limitations
imposed by the regular rules.
The custom originated in the English Parliament,
apparently during the reign of James I. Its adoption
was probably brought about by the necessity for com-
bining freedom of debate with certain restraints on
obstreperous members who might misuse too much
liberty. The committee of the whole is really a com-
promise between a regular session, and an adjournment
for purposes of discussion. The latter method could not
be used to advantage in any large assembly, because
some restraining influence would be necessary. But the
primitive form of the committee of the whole was
probably a short adjournment, during which members
could move about from one to another, and freely discuss
the merits of the matter under consideration. In 1750
the House of Representatives of New Hampshire did
COMMITTEE OF THE WHOLE HOUSE 93
not have a very complex organization, and sessions of
the committee of the whole were unknown. But there
are several instances where the House adjourned for
a short time, from six minutes to a few hours, to allow
time for discussion before a vote was taken. With a
large membership, the only result of such a method
would have been pandemonium, and the adjournment
and consequent freedom from rules would have defeated
its own object. But in New Hampshire the practice was
common enough so that a motion for such an adjourn-
ment, far from causing surprise, was taken as a matter
The idea of an informal session which should at the
same time be under some restrictions was brought to
America from England, and the committee of the whole
house, like the committee on grievances, was to a greater
or less extent common to most of the middle and southern
colonies. In New York and Georgia all bills, with rare
exceptions, were referred to the committee of the whole
after the second reading. While by no means so strictly
followed elsewhere, this practice was well known in
Virginia, and also in the Carolinas before the war. In
New England, on the other hand, the committee of the
whole, properly so-called, was rarely used, and then not
for purposes of discussing bills. ^
^N. H. Col. Bees., VI, 453, January 2, 1756; a motion was made for a
short adjournment, so "that the members might converse more freely on
the subject matter of his Excellency 's message of this day ' ' ; the House
then adjourned for fifteen minutes.
Other examples: VI, 155, November 7, 1752; pp. 202-203, May 4, 1753;
p. 269, April 12, 1754.
Sometimes there would be a short adjournment, in order to allow the
passage of a bill in one day, and at the same time comply with the rule
which required at least two adjournments between the three readings of
2 In the session of the New York Assembly, September-October, 1750,
all but four bills were referred to the committee of the whole after the
second reading. The exceptions were local bills, and were committed to
94 DEVELOPMENT OF LAWMAKING
In respect to bills, procedure did not change very much
throughout the period. In Pennsylvania, however,
where it had been almost unknown before the war, the
practice of referring bills to the committee of the whole
was made a regular custom. A rule was adopted to the
effect that all bills of a public nature should be placed
upon the calendar for a certain day, and unless the
House explicitly voted otherwise, they should be debated
in committee of the whole previous to the third reading.^
But decrease in this use of the committee of the whole
was more common than its extension. In both the Caro-
linas, where bills had frequently been discussed in
committee before the war, the practice had almost dis-
appeared by 1790. Why it should have been discon-
tinued in South Carolina is not clear, for very few
changes in procedure occurred there. But in North
Carolina, at least for this period, there was no necessity
for such a custom. The assembly was guided and con-
trolled by the leaders, through the committee on public
bills. They proposed important measures, and new bills
were framed either under their supervision or by their
own subcommittees. This type of organization meant,
of course, a thorough centralization of authority in the
hands of a few individuals. Important bills, which in
New York or Pennsylvania would have been referred to
committee of the whole, came into the assembly of North
Carolina stamped with the mark of approval by the
committee on public bills. Under such circumstances
reference to committee would have been not only un-
necessary, but somewhat out of harmony with the spirit
members from the section interested. N. Y. H. Journal, September 24,
1750, p. 283; October 3, p. 286; October 16, p. 291.
In Virginia, snch reference was fairly common. In the session which
lasted from October, 1785, to January, 1786, over twenty bills were thus
3 Pa. H. Journal, January 21, 1791, p. 106.
COMMITTEE OF THE WHOLE HOUSE 95
of central control. Then, too, since all bills were framed
by joint committees, differences of opinion between the
two chambers could be satisfactorily settled even before
the first reading.
Besides discussing bills, the house in committee of the
whole also debated various financial measures. Before
1776 in some cases the governor's recommendations
would be considered in informal session, and new taxes
might or might not be recommended.* Then, especially
after the war, questions of taxes and revenue were often
discussed in committee of the whole, even without any
urging from the executive. In Virginia, where the com-
mittee on ways and means did not become firmly estab-
lished, financial measures were regularly debated in this
way. In 1777, for instance, a very extensive list of new
taxes was drawn up in committee of the whole, and then
laid before the House. The recommendations included
taxes on real estate, slaves, horses and cattle, dogs,
plate above a certain value, mortgages, annuities, sala-
ries, tavern and marriage licenses, and carriages; also
a poll tax, and an excise on distilled liquors.^
4 N. Y. H. Journal, April 25, 1755, p. 440. The governor had urged the
adoption of measures for defending the colony; after discussion in com-
mittee of the whole, the House voted to raise £25,000, partly by a tax, and
partly by the issue of bills of credit.
Procedure in Virginia and North Carolina was similar. See especially
the short sessions of 1754 and 1755, passim, Va. H, of B. Journal. N. C.
Col. Eecs., V, 250, December 23, 1754; 847, May 18, 1757.
5 Va. H. of D. Journal, December 13, 1777, pp. 77-78. On November
29, 1781, p. 21, December 5, p. 28, and December 6, pp. 29-30, recom-
mendations were made regarding paper money, its redemption, and attempts
to fix its value. November 5, 1787, p. 31, the committee of the whole
recommended tariff duties on bar iron and castings, coal, rope, cordage, and
raw hemp. If a select committee was appointed to report new taxes, its
report would be subject to amendment and revision in committee of the
whole. Va. H. of D. Journal, December 7, 1781, p. 31; December 10,
p. 34; December 17, p. 44.
The same practice was common in New Hampshire after 1776, and in
Pennsylvania. N. E. St. Papers, VIII, 778-779, March 4, 1778; XX, 419,
96 DEVELOPMENT OF LAWMAKING
In states where a committee on ways and means was
in existence, its reports and recommendations regarding
new taxes and similar matters were subject to amend-
ment in committee of the whole. When money was
scarce, demands for new taxes could not be passed with
impunity, and every measure of that kind was debated
at length in informal session.®
In New York, too, the annual appropriation bill was
drawn up in committee of the whole. Salaries of the
governor, judges, members of the Council and Assembly,
and, in fact, of all state officials, were settled in this way.
In addition, all accounts and claims of individuals, and
all state expenditures, no matter how minute, were voted
upon in committee of the whole. After they were all
satisfactorily determined, a select committee would be
appointed to frame the appropriation bill in accordance
with these recommendations.^
Sessions of the committee of the whole house were not
October 25, 1785; 689, September 8, 1786; XXII, 179-180, January 27,
Pa. H. Journal, March 13, 1759, p. 28; March 15, p. 30; January 24,
1772, pp. 357-358; February 28, 1777, p. 116.
6iV. Y. H. Journal, August 25, 1779, p. 7; October 18, p. 74; January
27, 1780, p. 88, January 28, 1780, p. 91; February 7, 1786, p. 32. Tax bills
were all discussed in committee of the whole.
Pa. H. Journal, March 8, 1781, p. 584, Eeport of ways and means com-
mittee referred to committee of the whole; also March 22, p. 593, and
March 23, p. 595. When Virginia had a committee on ways and means, the
same procedure was followed; Va. H. Journal, December 2, 1779, p. 76;
December 10, 1779, p. 83.
S. C. H. Journal, February 12, 1784, p. 104; February 17, p. 125;
February 16, 1785, p. 140.
Md. H. Journal, November 25, 1785, p. 22, one of the very rare eases
when the committee of the whole was even mentioned. A motion to go
into committee of the whole to consider the establishment of permanent
funds for payment of judges' salaries was not carried.
7 N. Y. H. Journal, 1750 ; almost daily sessions of committee of the whole
from September to November 7, pp. 277 to 298, when a partial report was
presented. Further report presented November 9, pp. 299-303. November
13, p. 303, the appropriation bill was read the second time, and referred
to committee of the whole.
COMMITTEE OF THE WHOLE HOUSE 97
devoted wholly to bills and questions of finance; any
matter of importance might be discussed in informal
session. In Massachusetts, for instance, when one of
the Harvard buildings where the General Court had been
meeting was burned, the House in committee of the whole
took up the question of rebuilding it at public expense.*
In Pennsylvania, the Indian question was discussed in
committee of the whole, and a recommendation was made
at one time that settlements on Indian lands be prevented
by law, unless the land had been purchased.® Sometimes
charges of maladministration or corruption in public
offices were investigated by the committee of the whole."
An amusing case occurred in Georgia, when a petition
was presented to the House complaining of inhuman
treatment of prisoners in the jail. The House ''imme-
diately resolved itself into a Committee of the Whole
House upon the said Petition," and went in a body to
the jail to look into the matter.^^ The notion of a legis-
lative body in committee of the whole on a tour of
investigation savors somewhat of the humorous. Then,
during the decade before the war, relations with the other
colonies and with England sometimes came up for
discussion in committee of the whole, especially in
Massachusetts and Virginia.^^
Perhaps the most unusual function of the committee
of the whole house was to be found in Virginia, where
8 if ass. K. Journal, January 26, 1764, p. 229; the General Court had
been meeting in Cambridge, because of an epidemic of smallpox in Boston.
9 Fa. E. Journal, January 7, 1768, p. 10.
10 Pa. H. Journal, December 6, 1780, p. 546; N. C. St. Bees., XVIII,
11 Ga. Col. Bees., XIV, 214-215, February 12, 1765. The House numbered
about fifteen, so it was not much larger than some select committees for
investigation in other colonies.
12 Moss. H. Journal, October 19, 1764, p. 97; June 2, 1766, p. 20; June
2, 1773, pp. 26-27; June 8, 1774, p. 19.
Va. H. of B. Journal, November 13, 1764, p. 254; April 6, 1768; April
7, p. 158.
98 DEVELOPMENT OF LAWMAKING
its recommendations were similar to the reports of the
committees on legislation, or of the committee on public
bills. Instead of allowing a select or standing committee
to make out the program for the session, the House in
informal session drew up its own.
In Virginia especially the fiction of the committee of
the whole house was carried a step further than else-
where. In that state it had two forms, or perhaps rather
a kind of dual personality. There was first the simple
"Committee of the Whole House," to which were re-
ferred bills after the second reading. Then there was the
''Committee of the Whole House on the State of the
Commonwealth," which discussed the governor's letter
and outlined the legislative business. There was, to be
sure, no actual difference in form, but there was a clear
distinction between the two in the minds of the members,
and in the nature of the work done. If by mistake
business was referred to the simple committee of the
whole, when it should have gone to the other, the error
would be rectified, and an entry would be made in the
journal to the effect that the transfer had been made.^^
Just as in North Carolina the governor's message and
the public papers accompanying it were referred to the
committee on public bills, so in Virginia such matters
went to the committee of the whole house on the state
of the commonwealth." After due deliberation, the
''Committee" would lay its recommendations before the
House. These reports, which, taken together, really
constituted the legislative program, included such im-
portant subjects as new taxes, relations with Congress,
public lands, the judiciary, militia, and commerce. The
13 Fo. B. of D. Journal, October 11, 1776, p. 8; the "Committee of
the Whole House ' ' was discharged from proceeding on the letters from
Congress, and they were referred to the ' ' Committee of the Whole House
on the State of the Commonwealth." Similar case November 25, 1785,
i4 76fd., October 8, 1776, pp. 3, 5-6.
COMMITTEE OF THE WHOLE HOUSE 99
reports for 1778 suggested new laws regarding pilotage
rates, the recovery of debts, and military matters, such
as cavalry service, bounties for enlistments, and the
employment of free negroes. In addition it urged that
the governor's steps to procure a loan in France be
approved, and that a clerkship of foreign correspondence
be established.^^ Some general reports submitted in
1784 give a fairly good idea of the scope of this work.
Bills were recommended for regulating the election,
payment, and attendance of delegates to Congress, revis-
ing the recently made judiciary acts, altering Article
eight of the Articles of Confederation, appointing a
certain sum for use of Congress, revising the militia
acts, laying a temporary embargo on the export of
Indian corn, regulating foreign vessels trading with
Virginia, enabling officers to distrain property in order
to collect the army tax, and finally for selling certain
Another interesting phase of this work of the Vir-
ginian committee of the whole house on the state of the
commonwealth was its dabbling in executive business.
Sometimes it recommended laws, the passing of which
was really equivalent to the issue of an executive order.
For instance, at one time it suggested the passing of a
law to repeal an act by which troops had been located
at certain places on the frontier.^^ Going still further in
this direction, actual executive orders were sometimes
proposed in informal session, and of course confirmed by
the House. The governor and council, for example,
might be directed to take measures for disposing of
15 Va. H. of D. Journal, May 15, 1778, pp. 8-9; May 16, p. 10; May 18,
p. 11. November 30, 1779, pp. 74-75, reports recommended laws regarding
the navy of Virginia, foreign consuls, and regulations of sailors belonging
to foreign vessels.
i^IMd., May 15, 1784, p. 8; May 19, pp. 11-12; May 20, p. 13; May 21,
p. 15; May 28, pp. 25-26; June 10, p. 47.
17 Ibid., October 11, 1776, p. 8.
100 DEVELOPMENT OF LAWMAKING
certain military supplies. Again, they were authorized
to give orders for defending the southwestern frontier
during some trouble with the Cherokees. Once at least
the organization of certain militia companies was ar-
ranged, and the officers were named by the House.
Finally orders were given, to be carried out by the com-
missioners of the navy, or by the governor and council,
regarding the movement and work of vessels in the navy
of Virginia/^ These were matters which, strictly speak-
ing, belonged to the executive department, but for several
years after the war the line of demarcation between the
functions of executive and legislature were not very
In New Hampshire work of a similar character was
done by a joint committee of the whole. The legislative
program, strictly so-called, was drawn up by the com-
mittee on legislation, but other measures upon which
action was needed were laid before the assembly in
reports of this joint informal session. For instance,
state officials would be appointed, and the advisability
of creating commissioners for certain purposes would be
suggested, such as buying clothing for troops, or receiv-
ing the money lent to the Continental Loan Office.
Moreover, if the report of the committee on legislation
omitted important measures, this joint committee of
the whole would propose new laws.^**
18 Fa. E. of D. Journal, 1776, October 19, p. 19; October 25, p. 27;
October 28, p. 31 ; October 30, p. 33.
19 N. E. St. Papers, VIII, 745-746, December 24, 1777. In a series of
joint sessions in 1785, the following recommendations were submitted to
the House: that the Navigation Act should not be suspended; that the
President be authorized to write to the other states concerning regulation
of commerce; and that committees be appointed to "close" the public
accounts of the state, to consider a revision of the proscription laws, and
to consider a plan for establishing a ' ' post rider. ' '
N. E. St. Papers, XX, 419, October 24, 1785; October 25, p. 419; October
26, p. 420; November 4, p. 438. For similar action, see February, 1786, pp.
490, 495, 497.
COMMITTEE OF THE WHOLE HOUSE 101
In New York, procedure in this respect resembled that
in Virginia. The committee of the whole house, after
discussing the governor's speech or message, would
make suggestions regarding the action to be taken upon
his recommendations. "°
This brief survey of the committee of the whole
emphasizes certain differences in the systems of govern-
ment in North Carolina and in Virginia. There is
nothing particularly strange or out of the ordinary in
the practice of debating bills and financial measures in
committee of the whole, but the custom of making out
the legislative program in committee, as was done in
Virginia, was unusual. At first sight it might appear
to be a very democratic method; the representatives of
the people in an informal way talked over the needs of
the state, and then proceeded to legislate accordingly.
But the gathering of a hundred and fifty members for
the purpose of deciding upon such needs could accom-
plish little, because the very numbers would cause
confusion. Some guidance would be necessary, and
either a few clever politicians must have agreed to direct
the members in such deliberations, thereby turning the
whole thing into a machine-controlled assemblage, or
the governor's "letter" would be made the basis of
the recommendations. Either horn of the dilemma may
20 N. Y. H. Journal, Au^ist 25, 1779, p. 7. Committee of the whole
recommended bills: (1) to confiscate royalists' estates; (2) to supply the
troops with clothing; (3) to raise money for state debts.
September 7, 1780, pp. 6-7. Committee of the whole recommended:
(1) election of delegates to Congress; (2) appointment of a select com-
mittee to report on methods for defending the frontier; (3) appointment
of a committee to procure supplies for the army; (4) appointment of a
committee to complete the enrollment of the continental regiments. Further
recommendations on September 13, pp. 19-20.
In North Carolina, in 1786, the legislative program was made up in
joint committee of the whole; after that, however, the committee on public
bills did the work, as usual. N. C. St. Bees., XVIII, 255, November 27,
1786; November 28, pp. 260, 261.
102 DEVELOPMENT OF LAWMAKING
have been taken. In either case, procedure differed
radically from that in North Carolina, where the legis-
lative policy was framed by the standing committee on
public bills, a compact, efficient little group of assembly
leaders, sufficiently small to devise a consistent policy,
and influential enough to put it through. The recom-
mendations of the committee of the whole house on the
state of the commonwealth resembled those of the com-
mittee on public bills in character, but they were not so
numerous. Then, too, they were never laid before the
House in one solid block early in the session, to serve
as a constant guide to the assembly in its work, but were
brought forward in groups of three or four. The indi-
cations of smooth organization so conspicuous in North
Carolina were wanting in Virginia. If the House of
Delegates was controlled by a machine, the leaders were
not such able parliamentarians as were the members of
the public bills committee in North Carolina. Evidence
on this point is wanting, but from the very nature of
the case it seems likely that the governor had more or
less influence in managing the legislature. The proba-
bility is slight that the committee of the whole house,
unguided and undirected, could arrive at any decision
regarding legislative policy on important measures.
Moreover, had such sessions been wholly controlled by
the assembly leaders, it is probable that the custom would
have ultimately found expression in the appointment of
a committee on legislation. On the other hand, a good
politician like Patrick Henry could probably guide the
House through personal influence alone, so that the
recommendations of the informal session would reflect
his will. In North Carolina, the governor could have had
no great influence in shaping legislation, because he was
only one of the political leaders, elected by the same men
who appointed the committee on public bills. The system
COMMITTEE OF THE WHOLE HOUSE 103
in Virginia enabled an executive with a strong person-
ality to control legislation, while that in North Carolina
absolutely precluded such a possibility. It is clear, then,
that there was a marked difference in the types of
government in the two states. That in North Carolina
revealed some of the characteristics of the parliamentary
system, while that in Virginia foreshadowed the Con-
gressional form, which the Federal Convention, largely
influenced by the statesmen of Virginia, drew up for the
Because of the limitations imposed by the nature of
the material, an account of committee procedure in the
colonial period must deal for the most part with such
strictly formal details as the method of appointment,
time and place of meeting, and the external features
of committee organization. Information about these
matters can be gleaned from the journals, but that
source never gives even a glimpse of committees at work.
There are apparently no records available which outline
the debates and discussions, and describe proceedings in
the committee rooms. The records are bare enough
when the subject is taken up from the viewpoint of
institutional development, but they are extremely dis-
appointing when one looks for the human element in the
institution. Legislators of the eighteenth century were
by no means lacking in an understanding of devious
political methods, and it is probable that in their com-
mittee meetings they worked out schemes which would
make interesting reading to-day. Then, if in moments
of excitement members sometimes forgot their sense of
propriety, as they occasionally did even in formal
session,^ they very likely displayed considerable heat in
the committee rooms. The colonial governors deserve
"i^ Mass. H. Journal, February 18, 1782, p. 581. "Mr. Otis arose and
claimed the protection of the House, as the member from Oakham had
broke the Orders of the House by calling him a ScoundreU when in Order
on his seat. For which indecency the Member from Oakham is ordered
to ask pardon of the House, and to ask pardon of Mr. Otis. Which he did
accordingly. ' '
COMMITTEE PROCEDURE 105
thanks for telling what tales they did about the practices
of certain leaders in the assemblies, but even they had
little opportunity to find out what went on at the private
conferences of these shining lights in the lower house.
It takes the sharp rivalry of active politics to bring out
the truth regarding methods employed; when a man is
thoroughly exasperated at the work of his opponents,
he will tell all he knows about their operations. Conse-
quently there are more stories of clever manipulation
before 1776 than after, because between the outbreak
of war and the adoption of the Federal Constitution
there was no party in opposition. There were no
competitors to report to the public facts about legislative
schemes, and active participants in shady transactions
would not be likely to leave evidence that might be used
against them. Consequently, any attempt to discuss
committee procedure must be analytical and dry rather
than descriptive and interesting.
In forming an estimate of the importance of com-
mittees in legislative work, the method of appointment
is a factor worthy of consideration. Up to a short time
ago all committees in the national House were appointed
by the Speaker, that is, by the political chief of the party
in power. The membership was arranged with an eye
to party interests, and control over such appointments
was looked upon as a legitimate means of building up a
firm party organization in the House. Even now, when
the Speaker's power in this respect is somewhat less
autocratic than it was, the majority party still has full
control of committee membership, and the method of
appointment makes the standing committee system a
powerful engine for party purposes.
In the British Parliament of the sixteenth and seven-
teenth centuries, the manner of appointment was so
different that partisan control of committees would have
106 DEVELOPMENT OF LAWMAKING
been difficult if not impossible. Instead of being chosen
by the Speaker, they were named in a haphazard way by
the members of the House. After it had been voted to
refer a bill to a committee, the Speaker, in the quaint
words of D 'Ewes, ' ' did put the House in mind, to name
committees. And thereupon every one of the House that
listed, did name such other Members of the same, to be of
the Committee, as they thought fit; and the clerk either
did, or ought to have written down as many of them, as
he conveniently could; and when a convenient number
of the Committees named, were set down by the Clerk,
then did the Speaker move the House to name the time
and place, when and where they should meet."^ Such a
crude method indicates that party leaders could have
cared little about the personnel of the committees. The
main thing was to get some one to do the work, and
apparently in those days one member answered the
purpose as well as another.
In the assemblies of New Hampshire, Massachusetts,
New Jersey, and probably North Carolina, much the
same method was used, although there was an attempt
at orderliness which was wanting in the House of
Commons. According to the rules, "No member shall
nominate more than one person for one committee, pro-
vided the person by him first nominated be chosen. ' "
2 D 'Ewes, 44, February 3, 1559 ; Jameson, 252. This same method was
in use in 1603; a member would move that a committee be appointed, "and
to that Purpose were called, and set down by name . . . ," etc. Commons
Journal, I, 151, March 23, 1603.
3N. H. St. Papers, VIII, 740, December 20, 1777, Eule 15. Eepeated
June 8, 1784, N. H. St. Papers, XX, 72. Similar rules, Mass. Prov. Cong.
Journal, p. 164, April 29, 1775; Mass. H. Journal, May 30, 1777, p. 8; N. J.
H. Journal, October 24, 1792, p. 8.
In Massachusetts they were occasionally appointed by ballot. K.
Journal, November 22, 1780, p. 126; May 29, 1789, p. 21.
In North Carolina there is no direct statement regarding the method
of appointment during this period, but apparently committees were nomi-
nated by the House. The following statement hints at such a method:
Eesolved, that "before the House proceed to the choice of a Committee
COMMITTEE PROCEDURE 107
The modem method of appointment by the Speaker
prevailed in several colonies. In Pennsylvania and
Maryland, both methods were used, although the choice
of committees by the House took place only in cases of
In Virginia and Georgia committees were regularly
appointed by the Speaker. Evidence on this point is
clear enough in the case of the latter assembly. Accord-
ing to rule, it was ordered: ''That the Speaker appoint
the Committees with the approbation of the House, and
if any Dispute arise the Committees shall be ballotted
for by the House the Member that made the Motion or
proposed and the Member that seconded it being always
two of that Committee."^ Apparently the Speaker
looked upon the duty of appointing committees as his
special privilege, and objected to any interference with
that right. During the quarrel between Speaker and
House in 1756 the Speaker complained that "They
appointed Several Committees I refused to chuse the
Members they chuse them themselves. ' '"
they determine of what number the Committee shall consist." N. C. St.
Sees., XVII, 269, November 20, 1785.
*Pa. H. Journal, October 16, 1767, pp. 3-4, Eule 13. "That the Speaker
have Power to Nominate Persons for Committees, and that none who are
nominated refuse the Service; not that any of the Members shall be hereby
debarred of their Privilege of nominating Persons, if they think fit, or
rejecting such as are nominated by the Speaker; in which Case the Opinion
of the House shall govern. ' '
It seems likely that appointment by the Speaker was comparatively new,
entries in the Journal for October 17, 1764, p. 374, and October 16, 1765,
p. 433, state that: "The House proceeded to the Nomination of their
Committees for the ensuing year. ..."
After the war, appointment by the Speaker pretty generally superseded
the other method. Two instances were found when the Speaker asked the
House to name the committees, because of the importance of the measures
involved, but he was directed to appoint them. Pa. H. Journal, September
20, 1787, p. 72; September 12, 1788, p. 68.
For Maryland, Md. H. Journal, November 13, 14, 1782, pp. 5-6;
November 15, 1784, p. 3, Rule 32.
5 Ga. Col. Bees., XIII, 424, October 14, 1760, Rule 17.
6 IMd., XIII, 101, February 16, 1756.
108 DEVELOPMENT OF LAWMAKING
In the case of Virginia evidence is not so clear, but
what little there is practically proves that committees
were appointed by the Speaker.^ In the first place,
Edmund Randolph, in discussing the famous Speaker
Robinson, wrote that "to committees he nominated the
members best qualified."* Again, in 1789, an order
passed the House to the effect that every session, the
Speaker should appoint a committee to inspect the clerk's
office. When the committee was appointed the following
session, the record in the Journal is worded in exactly
the same way as are the entries regarding all committee
appointments: "Ordered, that a committee be ap-
pointed," and, ''a committee was appointed of . . ."so
and so,^ Thus, although the record itself gives no hint
that the Speaker named the committee, the preceding
order makes it probable that he did so. Moreover, when
there was a departure from the regular method, the
entry in the minutes calls special attention to that fact.^°
Although the method of appointment by the Speaker
lends itself more readily to the partisan control of
committees, sometimes, even when chosen by the House,
they were used by the leaders for party interests.
Evidence already presented shows how well they were
made to serve the purposes of the radicals in both Massa-
chusetts and North Carolina before the war." After
1776 in North Carolina, even during the period when
there was really no organized party in opposition, the
7 Miller, Legisl. of the Prov. of Va., 109, states that committees were
appointed by the House. The little evidence available points the other way.
8 Va. H. of B. Journal, 1766-1769, introduction, p. xiii, quoting Ran-
dolph's MSS., "Hist, of Va.," pp. 110-111.
9 Va. H. of D. Journal, November 5, 1789, p. 41 ; October 19, 1790,
10 The committee on ways and means, 1779 and 1780, was elected by
ballot. Va. H. of D. Journal, November 9, 10, 1779, pp. 47, 52; May 18,
19, 1780, pp. 12, 14.
11 Chapters II and III.
COMMITTEE PROCEDURE 109
centralized organization of the House, typified in the
committee on public bills, was made more complete by
appointing members of that committee to others, both
standing and select. In 1784, Person, one of the active
leaders, was on ten important committees, and two of
his colleagues, Hawkins and Hooper, were on nine. The
standing committees on public bills and on privileges
and elections, and select committees to arrange for the
settlement of accounts, to examine the accounts of the
commissioners of confiscated estates, to make up the
budget, to report what taxes should be levied, and to
decide upon the method of raising them, were all con-
trolled by about a dozen men."
After the committee was appointed, some sort of
organization was necessary. No matter how small it
was, every committee had to have a chairman. In
Pennsylvania, Maryland, and North Carolina, the pre-
siding officer was chosen by the committee itself, while
in Virginia he was apparently named by the Speaker."
In the case of those standing committees of Virginia and
North Carolina which were kept busy throughout the
session, clerks were also appointed. These were not
members of the House, but regular officials, selected by
the committee itself in North Carolina, and elected by
12 In the first session of the Federal House of Eepresentatives, the rule
regarding committee appointment stated that the Speaker should appoint
committees, unless the House decided that they should consist of more than
three members, in which case they were to be chosen by ballot. V. S. H.
Journal, April 7, 1789, p. 9. Later this was changed, and the Speaker was
given authority to appoint all conmiittees, unless the House specially
directed otherwise; in the latter case they were to be chosen by ballot,
ibid., January 13, 1790, p. 140. This arrangement resembled the method
in Pennsylvania, and was probably introduced through the influence of
13 Po. H. Journal, December 31, 1790, pp. 56-58, rule 16. Md. E.
Journal, November 29, 1765, p. 43. N. C. Col. Bees., Y, 793, 965; X, 594.
In other states evidence is wanting.
110 DEVELOPMENT OF LAWMAKING
ballot in Virginia." In Maryland, a few committee
clerks were appointed at the beginning of each session,
and then assigned to any committee in need of their
In the colonial period this simple form of organiza-
tion was sufficient, but in North Carolina and Virginia
after 1776 greater burdens necessitated more attention
to details. In order to insure increased efficiency in
dealing with the business referred to it, the committee
on finance in North Carolina divided itself into sub-
committees, to each of which was given a definite division
of the work. One would make up the budget, another
would look into the expenditures of the previous year,
and still another would be given charge of the tobacco
speculation in which the state engaged. In 1789 the
chairmen of these subdivisions reported directly to the
House, instead of to the main committee.^^ In 1790 the
committee on public bills divided into subcommittees,
for the purpose of drawing up the bills recommended
in its report.^^
Apparently some such method was adopted in Virginia
after 1785, although the Journal does not expressly
record the fact. This was made necessary, not only by
the amount of work, but also by the size of the com-
mittees. With a membership of about a hundred, the
i*2\r. C. Col. Bees., IV, 823, June 19, 1746; VIII, 141, October 30, 1769.
In Virginia, before the Revolution, each of the six regular standing com-
mittees had its own clerk. After the war, the committees were grouped
in pairs, one with a large amount of work, and one with little, and a clerk
was appointed for each pair. Va. H. of B. Journal, February 28, 1752,
pp. 7-8; March 6, 1773, pp. 10-11. H. of D. Journal, December 18, 1776,
p. 103; November 16, 1779, p. 58.
15 Md. H. Journal, November 7, 1765, p. 19; May 6, 1783, p. 2; Novem-
ber 11, 1783, p. 2.
16 N. C. St. Bees., XVIII, 282-283, December 6, 1786 ; six subcommittees.
XXI, 634, November 30, 1789, nine subcommittees. These were all joint,
because the main committee was joint.
17 Ibid., XXI, 889, November 5, 1790.
COMMITTEE PROCEDURE 111
committee on propositions and grievances was clearly
obliged to distribute the business referred to it in such
a way that the chairman and a few faithful ones would
not do all the work. The fact that in 1788 reports from
this committee were presented by seven different men
shows that the North Carolina scheme of subcommittees
had been adopted in Virginia.'^ This method was
peculiar to North Carolina and Virginia; elsewhere the
standing committees were not large enough for such
In this period, when so much of the work consigned
to committees had to do with investigating the truth of
facts alleged in petitions, authority to force the attend-
ance of witnesses was practically a necessity. Such
power was regularly given to the standing committees
of New York, Maryland after 1783, and Virginia, and
in other states it was granted whenever circumstances
made it desirable.^''
Once given, this authority was supported by the full
power of the House, and refusal to obey the summons
of a committee was a serious offense. Occasionally,
apparently in ignorance of the law, a man ordered to
appear at a certain time would calmly send word that
he was unable to attend. In New York, Pennsylvania,
and Virginia, when this happened, the offender was
18 Va. E. of D. Journal, October-December, 1788. Up to November 6,
W. Cabell, the regular chairman, reported each time; November 6, pp. 27-
28, Bullit reported; November 10, p. 33, Bland; November 15, p. 45, both
Cabell and Bullit; November 24, 27, 28, Carrington, New, and Callis;
December 17, Wilkinson. In the same session reports from the committee
on claims were presented by five different men.
19 A^. Y. E. Journal, August 25, 1779, p. 6. Md. E. Journal, November
11, 1783, p. 2. Va. E. of B. Journal, February 28, 1752, pp. 7-8. In 1777,
the power was granted to any committee appointed for purpose of gathering
evidence, ibid., June 7, 1777, p. 67. N. C. Col. Bees., VII, 352, November
8, 1766. N. C. St. Bees., XVIII, 273, December 4, 1786. S. C. E. Joiirnal,
January 23, 1787, pp. 11-12; January 27, p. 25. Ga. Bevol. Bees., Ill, 40,
January 3, 1782.
112 DEVELOPMENT OF LAWMAKING
declared guilty of contempt of the authority of the
House, and placed under arrest.^"
After the summons had been issued, the witness was
under the protection of the House. In New York, anyone
who prosecuted a person for statements made in testify-
ing before a committee was declared guilty of breach
of privilege.-^ In both Virginia and Georgia committee
witnesses, like members of the assembly, were privileged
from arrest during their attendance, and also during the
journey to and from the place where the hearing was
held. Finally, in Virginia, persons who attempted to
tamper with witnesses, or prevent them from appearing
or giving evidence, were considered guilty of high crimes
The marked variations in the number and importance
of standing committees in the early states affords an
excellent standard for determining the stage of develop-
ment which they had reached. Another side light on this
same thing is to be found in the relatively crude arrange-
ments made for committee meetings. When the state
houses were built, standing committees had not been of
sufficient importance to attract attention to their needs,
consequently in only rare cases had rooms been provided
in which they could meet. Not only were the comfortable,
almost luxuriously furnished, committee quarters of the
present day unknown, but in many states committees
were actually forced to meet in private houses. In New
York, New Jersey, Virginia, and North Carolina the
members of committees assembled for work in some such
place as ''the House of George Burns," ''the House of
20 N. Y. H. Journal, May 8, 1769, p. 53. Pa. H. Journal, March 3, 1759,
p. 24. Va. H. of B. Journal, March 26, 1767, p. 97; March 28, 30, pp. 100,
21 N. Y. E. Journal, December 28, 1768, p. 66.
22 Va. E. of B. Journal, December 8, 1769, p. 324. Ga. Col. Bees., XIV,
152-153, November 27, 1764.
COMMITTEE PROCEDURE 113
the Widow Stillwell," or perhaps at Mr. Whitehead's
or Jacob Hyer's.^^ To be sure other places were some-
times used, but they all show that the standing committee
was not nearly as important as it is at the present time.
In Massachusetts they met in the "upper rooms" of the
old statehouse, probably on the third floor, which is now
so insecure that only a few visitors are permitted to go
up there at one time, or in the ''Chambers of the
Porches," in the same building.-* In the other states
meeting places were also provided, somewhat more
suitable than private houses, for the discussion of
important business. In New Jersey, they sometimes
met in ''the old Meeting House, "^° and in New York in
the Council chamber, or in the Speaker's room.^^ In
Pennsylvania there was a "Committee Room at the East
End of the State-House,"" and by 1779 "Committee
Rooms" were provided in Virginia. ^^
The usual time for committee meetings was in the
evening, after the daily session.-^ In Virginia they also
met in the morning, before the House assembled, and
sometimes during the hour supposed to be set apart for
morning prayer.^" In Massachusetts, however, they met
during the regular sessions of the assembly, provided,
of course, that there was a quorum without them. When
23 2V. Y. H. Journal, June 5, 1753, p. 339; June 29, p. 348. N. J. H.
Journal, September 7, 1776, p. 66; September 12, p. 10; March 1, 1777,
Bruce, Inst. Hist, of Va., II, 479 ; Rowland, Life of George Mason, I, 335.
N. C. Col Eecs., V, 795; VIII, 141.
2iMass. H. Journal, July 31, 1775, p. 27; May 28, 1779, p. 10.
25 A'. J. H. Journal, November 23, 1776, p. 47.
26 iV. Y. H. Journal, June 4, 1751, p. 309; November 20, p. 326.
27 Pa. H. Journal, October 17, 1761, p. 189.
28 Va. H. of D. Journal, October 20, 1779, p. 16.
29 Rowland, George Mason, I, 335, Mason to Lee. N. C. Col. Eecs., V,
975; VIII, 141. S. C. H. Journal, March 3, 1787, p. 215.
30 Va. H. of B. Journal, December 8, 1769, p. 324.
114 DEVELOPMENT OF LAWMAKING
measures of special importance were under consideration,
the committees would be called in.^^
The active leaders must have found it very burden-
some to spend all day in regular session and then devote
half the night to committee work. In an exceptionally
busy season they not only had little time for pleasure,
but were even deprived of their sleep. A member of the
Provincial Congress of North Carolina found that the
business of getting the new government on its feet was
no easy task. "In my time," he wrote, '*I have been
used to business, both public and private, but never yet
experienced one-fourth part of what I am now neces-
sarily obliged to undertake — we have no rest, either
night or day. The first thing done in the morning is to
prepare every matter necessary for the day — after
breakfast, to Congress — there, generally, from 9 until
3 o'clock — no sitting a minute after dinner, but to
different committees ; perhaps one person will be obliged
to attend four of them between 4 o 'clock and 9 at night —
then to supper, and this generally brings us to 12 at
night. This has been the life I have led since my arrival
here — in short I never was so hurried. "^^
To be sure, that was an exceptionally busy period, and
it is doubtful if representatives were ordinarily so
active. The leaders may have worked hard and long,
but apparently they were the only ones who took their
committee duties very seriously. All the way from
Pennsylvania to Georgia there was the same tale of
31 Mass. E. Journal, June 8, 1776, p. 57, the House ordered "That all
the Committees of the House be called in." Ibid., January 27, 1779, p. 114.
At one time, when the Senate proposed to adjourn, because of small
attendance, the House reported that it was unnecessary, because a quorum
was present, and there were enough besides to ' ' set ' ' on all the important
committees. September 18, 1781, p. 212. Again, when the House wished
the joint committees to sit immediately, the Senate reported that matters
of importance were being discussed, so that members could not be spared
to sit on committees. January 30, 1782, pp. 499-500.
32 N. C. Col. Bees., X, 1033, appendix, Jones to Iredell, April 28, 1776.
COMMITTEE PROCEDURE 115
failure to attend meetings. Usually members dodged
their responsibilities in this respect, and it took much
prodding on the part of the chairman to get them to do
anything. In the Pennsylvania House a member once
remarked that "Every Gentleman must be sensible of
the difficulty with which Committees are collected . . .;"
and again, ''business consigned to a large Committee
was done by a few of its members or not at all . . .'"^
In regard to a certain petition which had been referred
by the Virginia House to a select committee, George
Mason wrote that the members seemed inclined to favor
it, ''if this can properly be said of men who are too
indolent to attend to anything. The Committee have
met, or rather failed to meet, at my lodgings every
morning and evening for this fortnight.'"* In North
Carolina, an irate legislator once complained that "The
want of punctuality among members in attending com-
mittees has called for the exercise of more philosophy
than I possess.'"' In Georgia carelessness in this
respect became so general that the House was forced to
impose a fine of six pence on members who did not come
to a committee meeting within fifteen minutes of the
time fixed by the chairmen; if they did not come at all,
they were fined two shillings.^®
This general lack of interest in committee meetings
may have been only another manifestation of the ten-
dency of the legislatures in the middle and southern
states to imitate procedure in the House of Commons,
for complaint was made about the same difficulty there
33 Pa. Debates, October 26, 1787, p. 8,
3* Rowland, George Mason, I, 335, Mason to Lee.
35 iV. C. St. Eecs., XVI, 613, May 1, 1782.
36 Ga. Col. Bees., XIII, 590, November 12, 1761; 594, November 13.
37 ComwoHs Journal, I, 169, April 12, 1604. "Upon a Motion made
touching the slow Proceeding and Dispatch of such Bills and Business,
as were depending in the House, which grew (as was said) by the Non-
116 DEVELOPMENT OF LAWMAKING
It is clear that members did not look upon their com-
mittee duties as a pleasure, and such complaints lead to
the suspicion that our forefathers were not filled with
that frantic desire to play their parts in legislative
matters which has sometimes been attributed to them.
In conclusion, so far as the state legislatures are
concerned, it can be said that by 1790 the standing
committees had become the most conspicuous feature of
the organization of nearly all the American assemblies.
Before very many years the same system had been
adopted by the national House of Representatives.
Thus at the present time the type of organization in the
British House of Commons is fundamentally unlike that
in the American House of Representatives. In England
the popular branch of the legislature is built up around
the Cabinet, a group of party leaders organized as an
administrative body. In the United States, on the other
hand, where the legislators take no part in actual admin-
istration, the lower house is split into numerous standing
committees. But in the beginning the House of Commons
was in principle not so very different from the average
colonial assembly, and in both places the conception of
what a legislature ought to be was practically the same.
A study of committee history during this period brings
out the fact that by 1760 the American legislature had
reached a point where slightly different conditions
might very easily have forced it into a line of develop-
ment parallel to that taken by the popular house of
At the beginning of the seventeenth century, the
House of Commons had a system of committees very
much like those in use later in some of the American
attendance of a sufficient Number at Committees; it was Ordered, That if
Eight of any Committee do assemble, they might proceed to a Kesolution
in any Business of the House. ' '
COMMITTEE PROCEDURE 117
colonies. But just at the time when this form of organi-
zation was developing, Parliament began its long and
bitter quarrel with the Stuart kings. If this had been
merely a struggle between two political parties, it would
not necessarily have affected institutional development.
But it was a conflict between two opposing theories of
government, or two sources of authority, so that there
was at stake not the mere question of party control, but
the rights and privileges of the House of Commons.
Henceforth, for three-quarters of a century, the chief
business of Parliament was not to legislate, but to protect
its rights against the aggressive supporters of the
prerogative. Such a situation called for a firmly knit,
well-organized body, the guidance of which could be
entrusted to a few active leaders. Consequently, because
they were designed for purposes of legislation rather
than for a defensive campaign, the committees which
had grown up gave way to a system of control by party
leaders. By the time of the flight of James II, Parlia-
ment had become accustomed to that kind of organiza-
tion, and the long uninterrupted Whig rule of the first
half of the eighteenth century served to make it perma-
nent. Thus when the House of Commons finally found
itself safe from all royal attacks upon its privileges, the
Cabinet had superseded the system of standing com-
mittees as the chief factor in lawmaking machinery.
In the American colonies, standing committees were
introduced just as they had been in the House of
Commons. Then, in the same way, there developed the
friction between prerogative and people which had
resulted in civil war in England. But in the colonies
the struggle did not last nearly as long as it had in the
mother country. To be sure some of the legislatures pro-
duced the ''Junto," a primitive kind of central organ-
ization, and the governors were generally engaged in
118 DEVELOPMENT OF LAWMAKING
altercations with the assembly. But the lower house
easily made good its right to a predominant place in
colonial government, and the royal executive was some-
what contemptuously thrust aside. Trouble did not
become acute until the English officials tried to regain
some of the lost ground, and then royal authority was
thrown off once for all. Moreover, for the first few years
after the war party rivalry almost disappeared in the
new states, so that there was no real necessity for strong
centralization in the lower house. Instead of being put
into a state to resist a long siege, the assemblies were
therefore organized primarily for purposes of legis-
lation, and the standing committee became the most
important feature of their mechanism. The tendency
toward a parliamentary form of government, the germ
of which existed in the ''Junto," thereupon came to an
The only exception to this general trend was in North
Carolina, where the legislature was built up around the
central committee on public bills. Other standing com-
mittees were used there, but the prominence of that one
made the assembly resemble the English Parliament
more closely than the other American legislatures. In
that one state the quarrels between governor and
assembly had been exceedingly bitter, and consequently
there was more need for a closely organized lower house.
The government was always in trouble, and for one
period of seven years several counties refused not only
to send representatives to the legislature, but also to
pay taxes.^^ Because of this continual turmoil. North
Carolina became accustomed to a centralized assembly,
and that form of organization was retained, as it had
38 N. C. Col. Eecs., IV, preface, p. xix. Some of the counties objected
to the royal order regulating the number of representatives they might
send, so from 1747 to 1754 they withdrew from participation in the
government; during these years there was no regular assembly.
COMMITTEE PROCEDURE 119
been in England, after the conditions which made it
necessary had disappeared.
The trend of development in Parliament, and in the
colonial and state legislatures during this period, indi-
cates clearly that the steady normal growth of the
average Anglo-Saxon assembly would result in a system
of standing committees. Such a conclusion is suggested
by procedure in Parliament in the early part of the
seventeenth century, and is confirmed by the history of
committee activity in America, especially after 1776.
In no colony save one was the constitutional strife severe
enough to force the assemblies into a posture of defense,
and to hold them there until that form of organization
became permanent. Admirably as it has worked during
the long period of peace which has followed the consti-
tutional struggle, the custom of entrusting the manage-
ment of Parliament to the party leaders was called into
being and given permanence by the severity of that
conflict. Had the same difficulties arisen in America
after the Revolution as they did in England after the
Great Rebellion, the legislatures would have been com-
pelled to adopt a similar system of central control.
THE FIRST CONGRESS
The period of the Revolution and Confederation was
primarily one of governmental reorganization, during
which colonies were being transformed into states, and
charters into constitutions. In this remodeling the
Americans had the advantage of years of practical
training back of them, so that not very much experi-
mentation was necessary. For that reason serious
blunders were avoided, and when the constitutions were
finally drawn they proved to be sensible, workable
instruments, providing for governmental structures very
similar to those of the past. In like manner the members
of the Federal Convention showed a tendency to follow
well-known precedents as closely as possible. To be sure
their task was more complicated than that of any state
convention, because there had been so little experience
with federal government in America. But even they
were called upon, not to invent new principles, but
rather to adapt and apply familiar ones. This was
particularly true in the case of the legislature. It was
taken for granted that the federal assembly would not
differ in its main outlines from any one of those of the
There were, however, two problems to be solved, both
puzzling, perhaps even more troublesome than would
have been the working out of some wholly new idea.
In the first place, it was necessary to adjust the theory
of representation to the requirements of a federal
government. Some arrangement was needed which
THE FIRST CONGRESS 121
would provide for the interests, and secure the partici-
pation, of the voters on the one hand and of the several
states on the other. Then the fields in which the new
Congress must and might operate, as well as those from
which it was wholly debarred, had to be surveyed and
bounded with no little care. These were vexing ques-
tions, and the handling of them demanded both finesse
and wisdom. To many Americans who had fought to
escape the meddling of one central government the
establishment of another was nothing less than a gra-
tuitous insult, and their susceptibilities could not be
Although all these constitutions, both state and
national, were based largely upon colonial and contem-
porary precedents, there was one striking omission.
There is not a reference in any of them to the political
party. They furnish the framework of government, and
provide for the necessary number of departments and
officials, but they disregard the very agency that made
possible the successful working of the whole system.
The fact that party organizations dominated colonial
governments apparently escaped notice. It may be that
because there was only one party during and for a time
after the war, the conventions felt that the days of such
activity were over. Or their neglect may be accounted
for by an impression that parties were things of ill-
repute, forces of the under-world of government, known
to politicians, but not referred to in the polite society
of respectable statesmen. Whatever may have been the
reason, the constitutions were permeated with that
eighteenth century obsession that all government, like
ancient Gaul, was divided into three parts. Executive,
legislative, and judicial departments were duly created
and separated, but the first two proved to be in the
future as they had been in the past merely the instru-
122 DEVELOPMENT OF LAWMAKING
ments of the majority party. As left by the Constitution,
the government was externally complete, but sadly
lacking within, like a motor car minus the engine. It
might be added that this defect, undeniably a vital one,
was subsequently remedied by Alexander Hamilton.
The new system was scheduled to begin operations
on March 4, 1789, but for various reasons there was a
delay of nearly a month in getting under way. To those
curious or interested citizens who were waiting to see
how the House of Representatives would handle itself
this circumstance must have seemed like an unpropitious
beginning. Although there were but fifty-nine members
in all, only thirteen of them were present on the date
named, and it was not until April 1 that the organization
In personnel the first national House of Representa-
tives did not differ materially from any one of its
thirteen prototypes in the states. Suffrage was extended
to those qualified to vote for the ''most numerous branch
of the State legislature, ' ' so there was no great likelihood
that the national House would contain very much more
in the way of talent and ability than its contemporaries.
1 When the time for the third session arrived interest had been so com-
pletely aroused that no time was lost. The following extract shows what
difficulties were encountered by members from a distance. "The punc-
tuality of the members has been such that we were within one of forming a
quorum of both houses on the first day, a circumstance well worthy of note.
We have today got over all preparatory ceremonies and shall now go
seriously to work. I cannot foretell whether the Campaign will be a bloody
one or not — it has opened with ominous circumstances; by taking the field
at a season when other combatants go into winter quarters. Many of our
champions have from the combined inconveniences of tempestuous weather
and bad roads met with terrible disasters in repairing to the Camp. Burke
was shipwrecked off the Capes; Jackson and Mathews with great difficulty
landed at Cape May and travelled 160 miles in a wagon to the City. Burke
got here in the same way. Gerry and Partridge were overset in the stage;
the first had his head broke and made his Entree with an enormous black
patch; the other had his ribs sadly bruised and was unable to stir for some
days. Tucker had a dreadful passage of 16 days with perpetual storms."
"The South Carolina Federalists," Am. Eist. Rev., XIV, 779.
THE FIRST CONGRESS 123
Every legislative body is something of a mirror, so to
speak, in which the voters are reflected with a surprising
degree of accuracy, so in this particular instance the
members were good eighteenth century Americans,
average representatives of the ruling class of the time.
Many of them had the advantage of more or less expe-
rience in their own local assemblies. Frederick Augustus
Muhlenberg, the first Speaker of the House, had been
trained in the duties of his office in Pennsylvania. He
seems to have been blessed with common sense and tact,
about the only qualifications needed at the time, because
the speakership was not originally a political office.
Perhaps an even more prominent member was James
Madison, the ''little Virginian," who brought with him
a fund of information concerning matters legislative
and governmental. Because of his active part in the
Federal Convention he was more widely known than
Muhlenberg, and he rather than the Speaker was looked
upon as the "first man" in the House. ^ While he was
a man of intellectual ability, he lacked force and driving
power, and was as guileless as a child in matters per-
taining to clever political manoeuvring. Madison, wrote
Fisher Ames, '4s probably deficient in that fervor and
vigor of character which you will expect in a great man.
He is not likely to risk bold measures, like Charles Fox,
nor even to persevere in any measures against a firm
opposition like the first Pitt. He derives from nature
an excellent understanding, however, but I think he
excels in the quality of judgment. He is possessed of
a sound judgment, which perceives truth with great
clearness, and can trace it through the mazes of debate,
without losing it. He is admirable for this inestimable
talent. As a reasoner he is remarkably perspicuous and
methodical. He is a studious man, devoted to public
2 Ames, Worlcs, I, 36.
124 DEVELOPMENT OF LAWMAKING
business, and a thorough master of almost every public
question that can arise, or he will spare no pains to
become so, if he happens to be in want of informa-
tion. . . . His clear perception of an argument makes
him impressive, and persuasive sometimes. . . . Upon
the whole he is an useful, respectable, worthy man. . . .
Let me add, without meaning to detract, that he is too
much attached to his theories, for a politician. He is
well versed in public life, was bred to it, and has no other
profession. Yet, I may say, it is rather a science, than
a business with him. He adopts his maxims as he finds
them in books, and with too little regard to the actual
state of things. ' "
Among others deserving mention, the young member
just quoted, Fisher Ames of Massachusetts, was one of
the most promising. Early in his career he attracted
attention through his vigorous advocacy of a powerful
federal government, and he was one of the most enthu-
siastic of Hamilton's supporters. He was even more
clear-headed than Madison in his reasoning, and he
certainly surpassed him in forcefulness of character.
His own mind worked so rapidly that he was inclined
to be intolerant of slowness in others, and he was
continually expressing disgust at the deliberate and
ponderous movements of the legislature. It was ill
health rather than lack of ability that prevented him
from rising to a position of prominence in national
On the whole, the first House of Representatives would
compare favorably with other bodies of its kind. It
could apparently be depended upon to accomplish the
3 Ames, WorTcs, I, 48-49. In an earlier letter Ames wrote that Madison
was a ' ' man of sense, reading, address, and integrity, as 'tis allowed. Very
much Frenchified in his politics. He speaks low, his person is little and
ordinary. He speaks decently, as to manner, and no more. His language
is very pure, perspicuous, and to the point," ibid., I, 35-36.
THE FIRST CONGRESS 125
work for which it was elected, and in so doing it would
very likely waste as much time in debating trifles and
in overemphasizing imaginary difficulties as its contem-
poraries were in the habit of doing. Such is the way of
democracy. Those who expected more of it, who were
inclined to idealize it and to hope for great and even
spectacular achievements were disappointed, for when
it finally settled down to work it proved to be very
legislature-like in its movements. At the end of his first
eight weeks in Congress, Ames wrote : ' ' I felt chagrined
at the yawning listlessness of many here, in regard to
the great objects of the government; their liableness to
the impression of arguments ad populum; their state
prejudices; their overrefining spirit in relation to
trifles; their attachment to some very distressing for-
malities in business, and which will be a curse to all
despatch and spirit in transacting it. I compared these
with the idea I had brought here, of demi-gods and
Roman Senators, or at least, of the first Congress. The
objects now before us require more information, though
less of the heroic qualities, than those of the first Con-
gress. I was sorry to see that the picture I had drawn
was so much bigger and fairer than the life. . . . But
since, I have reflected coolly, that in all public bodies,
the majority will be such as I have described — I may
add, ought to be such ; and if a few understand business,
and have, as they will, the confidence of those who do
not, it is better than for all to be such knowing ones ; for
they would contend for supremacy; there would not be
a sufficient principle of cohesion. . . . The House is
composed of very good men, not shining, but honest and
reasonably well informed, and in time they will be found
to improve, and not be much inferior in eloquence,
science, and dignity, to the British Commons. They are
patriotic enough, and I believe there are more stupid
126 DEVELOPMENT OF LAWMAKING
(as well as more shining) people in the latter, in propor-
tion."* Two days later he wrote again: ''We are not
in haste, or at least, have not learned to be in a hurry to
advantage. I think it is the most dilatory assembly in
In constructing the national legislature, the Federal
Convention did little beyond laying down the broad out-
lines. It provided for the Speaker of the House, but it
left practically all other matters of organization and all
the details of procedure to the House itself. With the
wealth of precedents available in the journals of con-
temporary state legislatures, there was really no definite
reason why the first Representatives should not have
formulated rules of procedure which would enable them
to go ahead smoothly and rapidly in the transaction of
business. They all knew, or could easily discover, how
laws were made by their friends at home. And yet, in
spite of all their experience, and their really remarkable
opportunities for observation, they wasted time for want
of good methods. At the end of two months, Madison
wrote that "in every step the difficulties arising from
novelty are severely experienced, and are an ample as
well as just source of apology. Scarcely a day passes
without some striking evidence of the delays and per-
plexities springing merely from the want of precedents.
Time will be a full remedy for this evil; and will I am
persuaded, evince a greater facility in legislating uni-
formly for all the States than has been supposed by some
of the best friends of the Union."®
The cause of that uncertainty, or lack of sure-
footedness, was probably the fact that the members
looked upon themselves as parts of an entirely new
4 Ames, WorTcs, I, 44-45. The ' ' first Congress ' ' referred to was the
e Ihid., I, 50.
6 Madison, Writings, V, 373.
THE FIRST CONGEESS 127
system.^ They seem to have preferred to adopt a very
few familiar principles, just enough to make possible
the transaction of business, and to wait for further rules
until time and experience should reveal their exact needs.
It is not strange that the members should be impressed
with the importance of their position, and should go
slowly in order to avoid possible errors.
The outstanding feature of procedure in the House
was the important part played by the committee of the
whole. Much of the business in the House of Delegates
of Virginia was transacted in that way, and the Vir-
ginians were influential enough to impose their methods
upon the federal House, in spite of the grumbling
opposition on the part of members from other sections.
The rules were so framed as to permit almost unre-
stricted freedom of debate,® and every member was given
unlimited opportunity to satisfy his own craving to talk,
and incidentally to convince his watchful constituents
at home that he was not neglecting their interests. As
a matter of fact, this extensive use of the informal
session was not wholly bad from the democratic point
of view. The House was so small that it was a genuine
deliberative assembly, in which national questions could
be discussed and considered from every possible angle.
It was in committee of the whole that Congress worked
out the first tariff bill, and also the main outlines of
such important measures as the laws organizing the
executive departments.^ After the general principles
7 Annuls, 1 Cong. 1, 383-384. In introducing the question of new execu-
tive departments, Boudinot of New Jersey said that the departments under
the ' ' late constitution ' ' were not to be considered as models, because of
the changes brought about by the new constitution, and because of the
"new distribution of legislative, executive, and judicial powers." This
idea of a clean slate may have influenced Congress.
s/fcid., 1 Cong. 1, 99, 101.
9/&tU, 1, 106-109, 125-126, 144-147, 368, 370, 383-384, 399, 412, 427-
428; 1 Cong. 3, 1888-1890.
128 DEVELOPMENT OF LAWMAKING
were once determined, select committees would be
appointed to work out the details, and to frame bills
in accordance with the decision already agreed upon in
committee of the whole."
The chief weakness in the system was that it pre-
supposed a higher general level of intelligence among
the members than was actually to be found. There were
a few leaders, but only a few, who could carry on a
profitable and illuminating discussion of general prin-
ciples ; the rank and file were speedily lost in a fruitless
if not inane debate over minor details. Naturally the
more brilliant members were disgusted at the waste of
time necessarily attendant upon the process. To quote
Ames again, it was ''certainly a bad method of doing
business. Too little use is made of special committees.
Virginia is stiff and touchy against any change of the
committee of the whole. . . . They are for watching and
checking power; they see evils in embryo; are terrified
with possibilities, and are eager to establish rights, and
to explain principles, to such a degree, that you would
think them enthusiasts and triflers.""
The same active commentator also described a session
of the committee of the whole at work on a bill. "We
consider it in committee of the whole, and we indulge
a very minute criticism upon its style. We correct
spelling, or erase may and insert shall, and quiddle in a
manner which provokes me. A select committee would
soon correct little improprieties. Our great committee
is too unwieldly for this operation. A great, clumsy
machine is applied to the slightest and most delicate
operations — the hoof of an elephant to the strokes of
^0 Annals, 1 Cong. 1, 125, 258, 381, 412; 1 Cong. 2, 1094. Considerable
work was done by these select committees, especially after the first session.
Congress was in session from ten to three, "before and after which the
business is going on in committees." Washington, Writings, XI, 484.
11 Ames, Works, I, 64.
THE FIRST CONGRESS 129
mezzotinto. I dislike the committee of the whole more
than ever. We could not be so long doing so little, by
any other expedient.'"^
In view of their prominence in the state legislatures,
it might naturally be supposed that standing committees
would be called into being to transact much of the routine
work of Congress. Such, however, was not the case.
To be sure there was a committee of elections," appointed
to inspect the credentials of members, and to investigate
facts in connection with contested elections, but strictly
speaking it performed no legislative work. Then, about
two months before the end of the first session, a standing
committee of ways and means was appointed, but its
career was exceedingly brief. Finance committees in
many of the states were familiar institutions, and
naturally members who were acquainted with them
suggested that the federal House would do well to
provide itself with similar machinery. The question
arose during the debate on the bill for organizing a
treasury department. Livermore was opposed to giving
any single official authority to submit plans for raising
revenue. If the House itself was not in a position to
do all such work, it ought to appoint a committee for
that purpose. Gerry agreed that a committee of ways
and means would be of great value in the transaction
of financial business." A month later Fitzsimons urged
definite action in the matter. ''If we wish to have more
particular information on these points," he suggested
while speaking of the revenue, "we ought to appoint a
Committee of Ways and Means, to whom, among other
things, the estimate of supplies may be referred, and
this ought to be done speedily ..." His suggestion
met with approval, and a committee of ten was ap-
12 Ames, Worlcs, I, 61.
i^ Annals, 1 Cong. 1, 122.
14 Hid., 621, 625.
130 DEVELOPMENT OF LAWMAKING
pointed.^'' This appointment was made on July 24, 1789.
On September 11, Alexander Hamilton entered npon his
work as Secretary of the Treasury." On September 17,
the committee of ways and means was ** discharged from
further pioceeding on the business referred to them,"
and it was ''referred to the Secretary of the Treasury,
to report thereon."" Henceforth there was hardly a
mention of such a committee in Congress until December,
1795, when Gallatin secured the appointment of the
This transfer of authority from a committee of the
House to Alexander Hamilton suggests the theory that
Congress may have considered the newly created heads
of departments as instruments not only of the president,
but of the legislature as well. If that was the case,
standing committees would of course be superfluous,
because there was no particular need for a duplication
In the case of the departments of Foreign Affairs, or
of State, as it was called shortly after, and of War, the
statutes creating them contain nothing to warrant such
an assumption. The secretaries of those departments
were executive officials, required to perform whatever
duties the president might entrust to them. The laws
nowhere suggest that Congress enjoyed any authority
to give them orders, or to assign any of their duties.^®
Because of the intimate relationship between Hamilton
and Congress, the status of the Treasury department
merits a more careful examination. The Constitution
itself conferred upon the House alone full power to
originate revenue bills, and that privilege was very
jealously guarded by thoroughgoing democrats. The
15 Annals, 1 Cong. 1, 696-697.
16 Learned, The President's Cabinet, p. 118.
17 Annals, 1 Cong. 1, 929.
18 Statutes at Large, I, 28, 49.
THE FIRST CONGRESS 131
establishment of the department gave rise to a lengthy
debate. Boudinot of New Jersey brought up the question
in the House, and recommended a law providing for a
"Secretary of Finance," whose duties should be to
superintend the treasury and finances of the country,
and in particular to look after the public debt, revenue,
and expenditure. With reference to revenue, Boudinot
advised that the new official be given authority to "form
and digest plans for its improvement."^^ In the mass
of argument called forth by this seemingly sound
recommendation two different points of view stand out
very clearly. The Federalists, if the name may be
applied to them as early as this, approved of Boudinot 's
recommendation. They pointed out the manifest ad-
vantages in having a single, expert official in charge, who
would be ready at any time to lay carefully matured
plans before Congress.^"
The opponents of the measure argued that in permit-
ting the secretary to "report" plans, the House would
be guilty of giving up power definitely conferred upon
it by the Constitution, and also that it would make the
official altogether too powerful. One of Madison's
colleagues. Page, thought the secretary might be per-
mitted to prepare estimates, "but to go any further
would be a dangerous innovation upon the constitutional
privilege of this House. ..." It would establish a
precedent, which might be extended until all the "min-
isters of the Government" might be admitted to the
floor to explain and support their plans, ' * thus laying the
foundation for an aristocracy or a detestable mon-
archy. "^^ Tucker agreed with Page. He thought that
the granting of the proposed authority to report plans
would "abridge the particular privilege of this House."
19 Annals, 1 Cong. 1, 383-384.
20 Hid., 617, 619. Ames, Works, I, 56.
2-^ Annals, 1 Cong. 1, 615-616.
132 DEVELOPMENT OF LAWMAKING
Certainly revenue bills could not be said to originate
in the House if they were reported by the "Minister of
Finance. ' ' If the plans were to come from the executive
at all, they should be sent in directly by the president,
and not by a secretary.^^
Some of these fears were overcome by an amendment,
which limited the secretary's authority to the prepara-
tion of plans. He was not given the right to "report"
them. Moreover, in no part of the act was the term
"executive" department used. Then, too, there seemed
to be a general feeling that such an official could easily
be held in restraint. Madison wrote that a finance
department was under consideration, "to be under one
head, though to be branched out in such a manner as will
check the administration."^^ Likewise Benson favored
a single head, rather than a board, but he "would have
the principal officer well checked in the execution of his
As finally drawn, the statute was conspicuously
different from those which created the other two depart-
ments. It required the Secretary of the Treasury "to
digest and prepare plans for the improvement and
management of the revenue, and for the support of the
public credit; to prepare and report estimates of the
public revenue, and the public expenditures; ... to
make report, and give information to either branch of
the legislature, in person or in writing . . . respecting
all matters referred to him by the Senate or House of
Eepresentatives, or which shall appertain to his office;
and generally to perform all such services relative to
the finances, as he shall be directed to perform."'^
It seems evident that Congress planned to create an
22 Annals, 1 Cong. 1, 616
23 Madison, Writings, V, 371.
2iA7inals, 1 Cong. 1, 384.
25 Statutes at Large, I, 65-67.
THE FIRST CONGRESS 133
agent, not for the executive, but for itself. Both by
actual phraseology and by implication the head of this
department was subject to the legislature, and nowhere
does the statute confer upon the president authority
to assign duties to the Secretary of the Treasury. Such
being the case, it is easy to explain the disappearance of
the committee of ways and means. A single official,
properly controlled, would be far more useful and far
more efficient than a committee, the personnel of which
might be subject to change every two years. In a
cabinet meeting Hamilton once observed 'Hhat as to his
department the act constituting it had made it subject
to Congress in some points, but he thot himself not so
far subject as to be obliged to produce all the papers
they might call for."-" That interpretation was one of
Hamilton's own, not warranted by the wording, and
certainly inconsistent with the general tone of the law
Nearly thirty years after the law was passed Monroe
asserted that it was drawn ''by A. Hamilton, who was
himself to be the Secretary, and whose object was to
establish a direct intercourse between the members of
the legislature and himself for his own purposes. "^^
Gallatin also had occasion to refer to the differences in
these laws creating the departments, and he thought that
the distinction was probably made in order to give
** Congress a direct power, uncontrolled by the execu-
tive" over financial matters. He did, however, query
whether ''this remarkable distinction, which will be
found to pervade all the laws relative to the Treasury
Department, was not introduced to that extent in order
28 Jeflferson, Writings, I, 190.
27 J. Q. Adams, Memoirs, IV, 217. Mr. Learned quotes this statement,
with the comment that it is not worthy of very much credence. The
President's Cabinet, p. 109.
134 DEVELOPMENT OF LAWMAKING
to give Mr. Hamilton a department independent of every
These statements seem to have been nothing more than
theories of Gallatin and Monroe, and unless more evi-
dence appears they cannot be taken very seriously. If
Hamilton 's activities as party leader throw any light on
this subject, it might be safe to say positively that he
did not draft the bill. Instead of giving Congress
authority over his office, he would have been far more
likely to reverse the relationship.
Although the departments of State and of War were
not legally subject to Congressional orders, they together
with the Treasury department were called upon to par-
ticipate in the work of legislation. Instead of being
referred to standing committees, as would have been the
case in state legislatures, some routine business was
turned over to cabinet officials. In dealing with certain
matters recommended by Washington in one of his
speeches to Congress, the House asked the Secretary of
the Treasury to prepare and report plans for the
encouragement of manufactures, while a similar request
concerning a system of weights and measures was sent
to the Secretary of State.^^ Not long afterward Hamilton
laid before the House a report from the postmaster
general, together with a bill drawn by the same official.
Although one of the members took exception to this
practice of receiving bills from the heads of departments,
the custom was not abandoned.^" At about the same time
Madison wrote that the chief measures before Congress
were "the plans of revenue and the Militia, reported by
28 Gallatin, Works, I, 66-67.
29 Annals, 1 Cong. 2, 1095. In dealing with other matters mentioned
in the speech, the House appointed select committees to bring in bills in
accordance with recommendations made.
30 Ihid., 2, 1114.
THE FIRST CONGRESS 135
Hamilton and Knox.'"^ Later, Jefferson as Secretary
of State, drafted a bill ^'to promote the progress of the
useful arts," which was introduced into the House on
February 7, 1791.^'
In addition to depending upon the secretaries for the
drafting of an occasional bill, the House also called upon
them to deal with certain petitions. In the state legis-
latures such work would have gone to standing com-
mittees, but Congress seemed to feel that the head of
a department would answer the purpose just as well as
a committee.^^ Surely if it could use the heads of depart-
ments in this way, the House might well dispense with
Such a loose-jointed organization as this would work
smoothly only under certain conditions, which are seldom
found in any legislative body. If they expect to evolve
the main outlines of important measures in committee
of the whole, all the members must work together in a
spirit of genuine cooperation and friendliness. Or, to
put it in another way, for the successful operation of
Congress under that kind of procedure, there must be
a total absence of political parties.
These conditions prevailed for a time in the first
Congress, so that there was very little factional bitter-
ness or organized party effort. Such a striking pecu-
liarity naturally attracted the attention of the members,
some of whom felt impelled to report the phenomenon
to their friends at home. One southern member wrote
31 Madison, Letters, I, 501-502.
32 Jeflferson, Works, V, 278-280; Annals, 1 Cong. 3, 1937. For a similar
instance, see Jefferson, WorTcs, V, 302-304.
33 Petitions referred to the Secretary of the Treasury: Annals, 1 Cong. 1,
917; 1 Cong. 2, 1395, 1413, 1522; 1 Cong. 3, 1873. To the Secretary of
State: 1 Cong. 2, 1572. To the Secretary of War: 1 Cong. 3, 1861, 1963;
"Sundry reports from the Secretary of War, on petitions referred to him
were read, and laid on the table." These are simply examples, not a
136 DEVELOPMENT OF LAWMAKING
that he ''received great pleasure from observing the
liberality and spirit of mutual concession which appear
to actuate every member of the House," and that he had
''not observed the least attempt to create a party, . . ."^*
Another reported that "Much harmony, politeness and
good humor have hitherto prevailed in both houses —
our debates are conducted with a moderation and ability
extremely unusual in so large a body — consisting of men
under the influence of such jarring interests.'"^ And
even Fisher Ames, who allowed nothing to pass un-
noticed, and who certainly would have mentioned party
differences if there had been any, wrote that "There
is less of party spirit, less of the acrimony of pride when
disappointed of success, less personality, less intrigue,
cabal, management, or cunning than I ever saw in a
public assembly. . . . Measures are so far from being
the product of caucussing and cabal, that they are not
sufficiently preconcerted. ' '^^
These statements, it should be noticed, refer to the
early part of the session, before the Congressmen had
fully recovered from the effects of a strange environ-
ment. The first actors on a new stage, mindful of the
dignity of their position, and perhaps somewhat in awe
of one another, would naturally display not only great
consideration, but even mutual respect. Familiarity
hardly gets time to breed contempt in the short space
of two months.
It was not so much the fault of the individual members,
however, as of the very nature of the federal Congress
itself that this cahn could not endure. Sectional differ-
ences, real and imaginary, to say nothing of widely
divergent theories of government, were bound to produce
34 McEee, Life of Iredell, II, 258.
35 "South Carolina Federalists," Am. Hist. Bev., XIV, 776.
36 Ames, Works, 1, 61-62.
THE FIRST CONGRESS 137
dissensions, and from factional strife thus generated it
is but a short step to party organization with all its
accompanying cabals and intrigues. Men capable of
drawing conclusions from very evident facts could not
remain blind to approaching changes. It is not sur-
prising to find that even while he was rejoicing at the
absence of party quarrels, Fisher Ames was carefully
analyzing the forces of disruption already at work. He
found, it seems, that ''Three sorts of people are often
troublesome. The anti-federals, who alone are weak, and
some of them well disposed. The dupes of local preju-
dices, who fear eastern influences, monopolies, navigation
acts. And lastly the violent republicans, as they think
fit to style themselves, who are new lights in politics;
who would not make the law, but the people, king; who
would have a government all checks; who are more
solicitous to establish, or rather to expatiate upon, some
high-sounding principle of republicanism, than to protect
property, cement the union, and perpetuate liberty.
' This new Constitution, ' said one Abner Fowler, in 1787,
'will destroy our liberties. We shall never have another
mob in the world.' This is the republicanism of the
aristocracy of the southern nabobs. It breaks out daily,
tinctures the debates with the hue of compromise, makes
bold, manly, energetic measures very difficult. The
spectre of Patrick Henry haunts their dreams. They
accuse the eastern people with despotic principles, and
take no small consequence to themselves as the defenders
of liberty."" Ames' letter merely indicates that a
change might be expected at any moment. Other
accounts prove that differences soon made themselves
evident. In the course of another month several members
had complaints to make about party controversies.
Senator Butler, for instance, of South Carolina, wrote
37 Ames, Worhs, I, 62.
138 DEVELOPMENT OF LAWMAKING
that he was very much disappointed with the new
government. ' ' I find, ' ' he wrote, ' ' locality and partiality
reign as much in our Supreme Legislature as they could
in a county court or State legislature. Never was a man
more egregiously disappointed than I am. I came here
full of hopes that the greatest liberality would be exer-
cised ; that the consideration of the whole, and the general
good, would take the place of every other object; but
here I find men scrambling for partial advantages. State
interests, and in short, a train of those narrow, impolitic
measures that must, after a while, shake the Union to its
When the question of the permanent residence came
up, intrigues began in earnest.^® One disconsolate
member complained that ''amendments in Congress are
as much wanted as in the Constitution. ' '*" A year later
whatever regard the members may have had for each
others' feelings had pretty much disappeared. By that
time "violence, personality, low wit, violation of order,
and rambling from the point" characterized at least one
debate. Apparently the discussion took such a bitter
turn that the papers did not venture to report in full,
and we are again indebted to Ames for a vivid descrip-
tion. ''The Quakers have been abused, the eastern
States inveighed against, the chairman rudely charged
with partiality. Language low, indecent, and profane
has been used; wit equally stale and wretched has been
attempted; in short, we have sunk below the General
Court in the disorderly moment of a bawling nomination
of a committee, or even of country (rather Boston) town
meeting. The southern gentry have been guided by their
hot tempers, and stubborn prejudices and pride in regard
38McEe€, Life of Iredell, II, 263-265.
39 Ames, Works, I, 69.
40 Pickering MSS., XIX, 172.
THE FIRST CONGRESS 139
to southern importance and negro slavery . . . they have
shown an uncommon want of prudence as well as mod-
eration; they have teased and bullied the House out of
their good temper, and driven them to vote in earnest
on a subject which at first they did not care much
The later debate on the permanent residence exasper-
ated the young member from Massachusetts. *'I care
little where Congress may sit. I would not find fault
with Fort Pitt, if we could assume the debts, and proceed
in peace and quietness. But this despicable grogshop
contest, whether the taverns of New York or Philadelphia
shall get the custom of Congress, keeps us in discord
and covers us all with disgrace. ... It is barely possible
for any business to be more perplexed and entangled
than this has been. We have fasted, watched, and
prayed for the cause. I never knew so much industry
and perseverance exerted for any cause. Mr. Sedgwick
is a perfect slave to the business. Mr. Goodhue frowns
all day long, and swears as much as a good Christian
can, about the perverseness of Congress." Then with
reference to finance he wrote: ^'We are passing the
ways and means bill. We do so little and behave so ill
in doing it that I consider Congress as meriting more
reproach than has yet been cast upon it. ' '*^
This comparatively sudden appearance of partisan
differences made possible and even necessary the creation
of a well-organized legislative machine. No faction
could afford to sit idly by and rely upon a discussion in
committee of the whole to evolve and formulate its
"Ames, Worlcs, I, 75. Cf. Maelay, Journal, p. 222. "The House have
certainly greatly debased their dignity, using base, invective, indecorous
language; three or four up at a time manifesting signs of passion, the
most disorderly wanderings in their speeches, telling stories, private anec-
42 Ames, Works, I, 80.
140 DEVELOPMENT OF LAWMAKING
favorite measures. Still less could it hope to secure
the enactment of its policies without a concerted effort
to win votes. The fear that their opponents might
resort to those unparliamentary but extremely effective
tactics already well known to the state legislatures
compelled them all to resort to the same methods.
Instead of waiting for action in committee of the whole,
the party leaders would decide upon their policies and
draft bills in accordance therewith in party councils.
The scene of actual legislation would be shifted from
Congress to the caucus.
The Federalists were the first to profit by this division
of the House into party groups, partly because they were
in the majority, but more especially because they enjoyed
the tremendous advantage of able leadership. Tempera-
mentally more of a philosopher than a general, Madison
himself was never able really to command a majority,
while Jefferson, the creator of the Republican party, was
still laboring under the delusion that as an executive
official he must keep clear of Congress. Opposed to him
was the great Federalist chieftain, Alexander Hamilton,
who stood without a peer as an organizer and director
of party forces.*'* His ready intelligence grasped the
truth at once that Jefferson spent more than ten years
in learning : that not even the Constitution of the United
States could keep apart two such inseparable factors in
government as executive and legislature. His official
position naturally brought him into close contact with
Congress, and enabled him to see that such a loosely
organized body was simply waiting for a commander.
The mere fact that he was not a member was not the
slightest obstacle to him, because it was easier to domi-
nate Congress indirectly, through the medium of a
political party, than directly from the floor.
43 Adams, Gallatin, p. 268.
THE FIRST CONGRESS 141
By the winter of 1790, Hamilton was attracting atten-
tion because of his influence over Congress. In March
of that year in the course of a debate on an appropriation
bill, one Jackson moved an amendment, providing for
an appropriation for clearing the Savannah River. In
reply to objections made to his amendment, he remarked
that ''according to the ideas of some gentlemen, the
House had no right to add to the appropriations pro-
posed by the Secretary," and that "according to this
doctrine, the whole business of Legislation may as well
be submitted to him, so in fact the House would not be
the Representatives of their constituents, but of the
Secretary. ' '**
In the diary of Senator Maclay there are several brief
but pithy comments which reveal both the extent and
the nature of Hamilton 's power in Congress. * ' It really
seems," he wrote, "as if a listlessness or spirit of lazi-
ness pervaded the House of Representatives. Anything
which comes from a Secretary is adopted almost without
any examination." Referring to the bank bill, he com-
plained to the pages of his diary that "It is totally in
vain to oppose this bill." "Nothing," he wrote, "is
done without him." Sometimes the democratic senator
seemed ready to throw up his hands in despair at the
total inability of the opposition to stem the tide of
Hamiltonian legislation. Some such state of mind must
have been responsible for the following: "Were Elo-
quence personified and reason flowed from her tongue,
her talents would be in vain in our assembly; . . .
Congress may go home. Mr. Hamilton is all-powerful,
and fails in nothing he attempts. ' '*^
Such general assertions would not necessarily mean
very much by themselves, but they are supplemented by
** Annals, 1 Cong. 2, 1499.
*5 Maclay, Journal, pp. 246, 364, 385, 387.
142 DEVELOPMENT OF LAWMAKING
occasional references both to specific instances of Ham-
ilton's activity in Congress, and to his methods of
operation. For instance, Maclay mentions four separate
measures, the assumption, bank, and excise bills, and a
resolution regarding the mint, all of which were passed
in spite of opposition, largely through the influence and
personal efforts of Hamilton himself.*®
His success was due in large measure to his careful
oversight of the whole process of legislation. Maclay
even went so far as to assert that ''Hamilton prepares
all matters for his tools. "*^ Then, in order to prevent
his measures from falling into the hands of an ill-
disposed select committee in Congress, the able secretary
looked after the appointment of some committees him-
self.*^ If the committee needed the benefit of his advice,
he was ready to give it, of course, and in some cases he
even went so far as to attend committee meetings,*^ to
guard against the danger of a slip at any stage.
After the preliminary steps had been taken, and the
measure was on its way through Congress, Hamilton
spared no pains to secure its passage. In case its success
was doubtful, the measure would be held back, until the
end of the session if necessary, or at least until a majority
in its favor was certain. Referring to the resolution on
the mint, Maclay charged that Hamilton "kept back this
exceptionable business till there would be no time to
investigate it," and that, finally, '4t was foully smuggled
through. ' '
46 Maclay, Journal, pp. 209, 355, 385, 409.
47 Ibid., pp. 409, 389.
i» Ibid., p. 331; "Everything, even to the naming of a committee, is
prearranged by Hamilton and his group of speculators. ..."
49j&id., p. 385.
50 Ibid., p. 409. Cf. 208 : ' ' 'Twas freely talked of that the question
was to have been taken this day on the assumption of the State debts, but
Vining, from the Delaware State, is come in, and it was put off until he
would be prepared by the Secretary, I suppose. ..."
THE FIRST CONGRESS 143
One or two more quotations throw interesting light
on Hamilton's ceaseless vigilance and activity. ''Mr.
Hamilton is very uneasy, as far as I can learn, about his
funding system. He was here early to wait on the
Speaker, and I believe spent most of his time in running
from place to place among the members. "^^
Regarding the assumption measure, Maclay wrote:
**I do not know that pecuniary influence has actually
been used, but I am certain that every other kind of
management has been practiced and every tool at work
that could be thought of. OflScers of Government, clergy,
citizens, Cincinnati, and every person under the influence
of the Treasury ; Bland and Huger carried to the chamber
of Representatives — the one lame, the other sick.
Clymer stopped from going away, though he had leave,
and at length they risked the question and carried it,
thirty-one votes to twenty-six. And all this after having
tampered with the members since the 22^<i of last month,
and this only in committee. . . . ""
Again he wrote: "In Senate this day the gladiators
seemed more than commonly busy. As I came out from
the Hall, all the President's family were there —
Humphreys, Jackson, Nelson, etc. They had Vining with
them, and, as I took it, were a standing committee to
catch the members as they went in or came out. ' '^^
The facts described above do not necessarily prove
that there was very much of a party organization in
1790; they merely show that the Secretary of the
Treasury was the most important factor in Congress
during its first session. Yet the main outlines of party
organization were clearly visible even as early as that.
In order to secure harmony and unanimity of action,
51 Maclay, Journal, p. 189,
52 Ibid., p. 209.
53 Ibid., p. 235.
144 DEVELOPMENT OF LAWMAKING
it was customary for Hamilton's followers to hold
meetings of their own. Although the word ''caucus"
was not applied to these party gatherings, they were
caucuses in all but name. It was on these occasions
apparently that policies were determined upon, and it
was doubtless the assurances obtained in them that
enabled Hamilton to estimate the probable vote with
such exactness. Maclay refers to "the rendezvousing of
the crew of the Hamilton galley," or to a ''call of the
gladiators this morning," or again to the statement
of Speaker Muhlenberg that "there had been a call of
the Secretary's party last night. "^* These allusions are
made in a perfectly matter-of-fact way, as though
such meetings were already looked upon as familiar
In view of these facts it is not surprising that
Hamilton's financial policy was adopted in the face of
bitter opposition. The Federalists were well organized
and intelligently directed by a masterful leader, while
at first the chaotic group of country gentlemen, the
followers of Madison and Jefferson, could do nothing
but growl and complain of corruption. From their point
of view such success as Hamilton enjoyed could not be
When he was complaining about the difficulties due to
want of precedents, Madison was not aware of the actual
nature of the trouble with Congress. The real need was
not more rules, but more driving power. That was
furnished by the Hamiltonian or Federalist party
organization, and thus the gap in the Constitution was
bridged over. The change that had taken place was of
such nature as to fill with unpleasant forebodings the
democratic minds of the "new lights in politics." One
of their ideals was shattered before the new govern-
54 Maclay, Journal, pp. 208, 227, 235.
THE FIRST CONGRESS 145
ment was even two years old. Instead of being a forum,
where every member was a peer and no man led, where
great principles of government were evolved through the
give and take of unrestricted discussion, Congress as
such had become in effect a mere ratifying body. The
real work of legislation was put in shape, not in the
legislature, but in secret session of the majority party.
In this organization, unknown to the Constitution and
beyond the reach of the rules of either chamber, the
executive could work with the party-following in
Congress, and secure the adoption of a prearranged
This relationship between executive and Congress
suggests the theory that the heads of departments may
have considered themselves a cabinet similar in some
respects to the English cabinet. If that was the case,
their interest in drafting bills and in the course of legis-
lative activity is very easily explained. If Hamilton
was looked upon as a minister of finance he was not a
self-seeking usurper, as Maclay considered him, a man
interested in ruling the House partly from love of power,
and partly from love of personal gain. Instead he was
a part of the ministry, an executive official in charge of
finance. Considering himself directly responsible for
that department of the government, naturally he would
exert himself to the utmost to secure the adoption of his
policy. That conception of the heads of the departments
as a ministry also explains the attitude of the Federalists
toward their chief. If it was his duty to lead Congress,
it was just as much its duty to follow. What was a party
for if not to sanction and approve the carefully drawn
plans of its leaders?
At that time, aside from the respectful manner in
which the Federalists supported Hamilton, there was
nothing to justify such a theory. In 1797, however, the
146 DEVELOPMENT OF LAWMAKING
views of the Federalists, as voiced by Fisher Ames, do
permit such an interpretation. Referring to the Repub-
lican attempts to assert the power of the House at the
expense of the executive, he wrote : ' ' Our whole system
is little removed from simple democracy. What we call
the government is a phantom, as long as the democrats
prevail in the House. The heads of departments are
head clerks. Instead of being the ministry, the organs of
the executive power, and imparting a kind of momentum
to the operation of the laws, they are precluded of late
even from communicating with the House, by reports.
In other countries they may speak as well as act. We
allow them to do neither. We forbid even the use of a
speaking-trumpet ; or, more properly, as the Constitution
has ordained that they shall be dumb, we forbid them
to explain themselves by signs. Two evils, obvious to
you, result from all this. The efficiency of the govern-
ment is reduced to its minimum — the proneness of a
popular body to usurpation is already advancing to its
maximum; committees already are the ministers; and
while the House indulges a jealousy of encroachment on
its functions, which are properly deliberative, it does
not perceive that these are impaired and nullified by the
monopoly as well as the perversion of information by
these very committees. The silly reliance of our coffee-
house and Congress prattlers on the responsibility of
the members to the people, &c., &c., is disgraced by every
page of the history of popular bodies. We expect, con-
fidently, that the House of Representatives will act out
of its proper character — for if it should act according
to it, we are lost.
''Our government will be, in fact, a mere democracy,
which has never been tolerable nor long tolerated. "^^
Evidently Ames believed that Congress needed a guide,
55 Hamilton, WorJcs, VI, 201, Ames to Hamilton,
THE FIRST CONGRESS 147
and he would have had the executive act in that capacity.
Harmony of purpose, unity of action, and fixed respon-
sibility for measures passed, all these advantages could
have been secured from the operation of such a system.
But the Jeffersonians, before they controlled the admin-
istration, looked upon such a government as tyranny.
Speaking of the House under democratic control, Ames
ironically wrote: "We think the executive power is a
mere pageant of the representative body — a custos
rotulorum, or master of the ceremonies. We ourselves
are but passive instruments, whenever the sovereign
people choose to speak for themselves. . . ."°*
The totally opposite theories of government held by
the Federalist and Jeffersonian parties were thus clearly
brought out in their attitude toward the popular branch
of Congress. One would give the balance of power to
the executive, and make it the influential factor in legis-
lation, while the other would subject the executive to
Congressional control. This difference supplies the key
to the history of Congress for several years to come.
66 Hamilton, Works, VI, 202.
REPUBLICANISM IN THE HOUSE, 1792-1800
In spite of the criticism of their opponents, the Fed-
eralists continued their work in the second Congress
along lines laid down in the first. Measures decided
upon by the executive were submitted to the legislature,
and duly passed. There was no disregard of the care-
fully planned policies of Washington and Hamilton, no
attempt on the part of the majority in the legislature to
take unto itself the whole management of public affairs.
If there was any change at all, it was in the direction
of an even closer and more systematic relationship
between Hamilton and the House of Representatives.
For example, when the president recommended certain
changes in the excise law, the Federalists had the sub-
ject referred to the Secretary of the Treasury, instead
of to a committee, on the ground that he was in the best
position to furnish the needed information.^
Again, when money was needed for the protection of
the frontiers, Hamilton furnished the Congressional
leaders with the draft of a revenue bill for that purpose.^
Shortly afterwards, Sedgwick recommended that the
Secretary of the Treasury be directed to suggest to the
House the best method of raising additional funds for
the coming year. In defending his proposition, he
assumed that the general principle had been adopted,
that the secretary should be considered responsible
1 Annals, 2 Cong. 1, 150-152. Even Sedgwick, a Federalist, objected to
this particular reference, on the ground that there was "a manifest im-
propriety and want of respect in referring any part of the President's
Speech, or a law of the Union, to the Head of any particular Department. ' '
2 Ibid., 349.
REPUBLICANISM IN THE HOUSE 149
for formulating financial measures for the legislature.
Without such help, he argued, orderly conduct of finance
was impossible. With the infinite detail of general busi-
ness to look after, the House itself could not devote the
necessary time and attention to the subject of revenue.^
If these measures were evil, from the Republican point
of view, the resolution introduced early the next session
was infinitely worse. In the course of the debate on
General St. Clair's defeat, some members wished to
invite the Secretaries of War and the Treasury to attend
the session, in order that they might furnish the House
with reliable information. This proposition, however,
was going too far even for some of the Federalists, and
the motion was lost.*
While the Federalists were thus strengthening their
organization, their opponents, hardly a party as yet,
were being drawn together through their fear of ''the
aristocrats" in general, and their distrust of Hamilton
in particular. They could see nothing but evil in the
intimate relationship between secretary and Congress.
"Have we, in truth, originated this money bill? Do we
ever originate any money bill?" vehemently asked
Mercer, in opposing a revenue measure which Hamilton
had sent into the House. ''It is in my judgment," he
continued, "a direct infraction of the letter and spirit
of the Constitution, of the principles of free govern-
ment ..." Then he concluded : " I have long remarked
in this House, that the Executive, or rather the Treasury
Department, was really the efficient Legislature of the
country, so far as relates to the revenue, which is the
vital principle of Government. The clause of the Consti-
tution confirming to the immediate Representatives of
3 Annals, 2 Cong. 1, 437-440; Sedgwick's resolution was carried, 31-27,
4 Ibid., 2 Cong. 2, 679, 684, 689.
150 DEVELOPMENT OF LAWMAKING
the people, in this House, the origination of money bills,
is converted into a Committeeship of sanction, that never
withholds its assent.'"
Sedgwick's resolution, referred to above, was the cause
of a long debate on this same general question. In per-
mitting the secretary to submit revenue measures, the
House was guilty, so Page charged, of a "dereliction of
our duty." Findlay opposed the resolution because he
thought it was ** contrary to the principles of the gov-
ernment, and inconsistent with the purity and independ-
ence of the House of Representatives, whose duty it is
exclusively to prepare or originate revenue laws. . . .
I consider this mode as a transfer of Legislative author-
ity."® From their point of view, the mode of taxation
should have been determined by the House itself, and
not until that preliminary work had been done, in com-
mittee of the whole, could even the mechanical arrange-
ment of details be delegated to a secretary or to a
The line between the two groups in the House was
sharply drawn on this issue. Both agreed that the Con-
stitution conferred upon the House alone authority to
initiate revenue bills. The Federalists maintained that
the constitutional provision in question did not prevent
6 Annals, 2 Cong. 1, 349-354.
6 Ihid., 441, 447.
T Ibid., 349; ibid., 2 Cong. 2, 693, 694, 700, 704. National Gazette, Apr.
12, Apr. 23, Nov. 17, 1792.
The National Gazette held that the proper duties of the Secretary of
the Treasury were those of a head clerk rather than of a minister of
finance. He should look after the subordinate officials in his department,
apply the revenue to those purposes for which appropriations had been
made, and give information concerning those matters to the President or
In addition to being fundamentally wrong in itself, so the Eepublicans
argued, this Federalist policy of dependence on the secretary would lead
inevitably to corruption, and private interests rather than the general
welfare would become the determining factor in public finance. Annals,
2 Cong. 1, 450; Jefferson, Works, VI, 103.
EEPUBLICANISM IN THE HOUSE 151
the members from seeking expert advice from their own
agent, the Treasury department. Any or all of the sec-
retary's recommendations could be rejected by Con-
gress, so the liberties of the people were in no way
endangered. Their opponents, however, would receive
advice from no one outside the House. As the chosen
representatives of the voters it was their duty to per-
form every task set before them properly and in order.
When dealing -with party differences such as this, it
is always difficult to estimate to what extent the argu-
ments are based on genuine conviction, and to what
extent they are occasioned, consciously or otherwise,
by political expediency. Doubtless at this time all
of those Eepublican speakers were absolutely sin-
cere. It is necessary to remember though that the
minority very frequently condemns a measure or a
method as unconstitutional when the sole argument
against it is that it has been successfully used by a vic-
torious majority. The leaders of the opposition, some-
times purposely, sometimes unconsciously, see in the
defeat of their party not the simple and inevitable for-
tune of political warfare, but a very grave attack upon
the fundamental principles of the government. The
weaker side very frequently poses as the divinely ap-
pointed guardian of popular rights, and it voices its
protests with a vociferousness inversely proportioned to
its actual power.
Be that as it may, the Eepublicans made it perfectly
clear that if they should ever get the upper hand in Con-
gress, they would make short work of Hamilton, and
restore to the House what they considered to be its con-
stitutional authority over finance. When the Congres-
sional elections of 1792 assured them of a clear majority
in the next House, they settled back to wait for better
days, openly announcing their intention of blocking fur-
152 DEVELOPMENT OF LAWMAKING
ther Federalist action by every means in their power.®
That they at least embarrassed the majority is proved
by the words of Hamilton himself, whose contempt for
the Republicans was even greater than their distrust of
him. " 'Tis not the load of proper ojffilcial business that
alone engrosses me," he wrote to John Jay, ''though
this would be enough to occupy any man. 'Tis in the
extra attention I am obliged to pay to the course of
legislative manoeuvres that alone adds to my burden
When the third Congress convened, the Republicans,
with all the seriousness of reformers with a mission,
settled down to their self-appointed task of restoring the
constitutional balance. Early in the session the secre-
tary and his clerks were embarrassed by incessant de-
mands for information of one sort and another. To the
Federalists, these repeated calls seemed to be nothing
but a scheme to perplex their chief, and to discredit him
in the eyes of the public."
On February 24, 1794, a resolution proposed by Giles
was taken up from the table, after a month's delay, and
passed. According to Giles himself, the primary pur-
pose of the manoeuvre was "to ascertain the boundaries
of discretion and authority between the Legislature and
the Treasury Department."" On the same day the
chaste columns of the Aurora, as if by prearrangement,
expressed the hope that the darkness in which the opera-
tions of the Treasury had so long been concealed would
very shortly be cleared up.^^ The fight to eject Hamil-
ton from his post as "minister of finance" was on.
8 Ames, WorTcs, I, 128.
9 Hamilton, Works, X, 29.
10 Gibbs, Fed. Adm., I, 127, 129.
11 Annals, 3 Cong. 1, 463-464.
"^^ General Advertiser (Phila. Aurora), Feb. 24, 1794. Comparing the
obscurity of the Senate with that of the Treasury, the Aurora said: "One
is a republican — the other, a fiscal darkness. Yet there are some, who
REPUBLICANISM IN THE HOUSE 153
As the bitterness of the controversy steadily increased,
Hamilton began to give evidence of irritation. On March
3, as he was reporting on some petitions, he seized the
opportunity to ask for relief from troublesome routine
of that kind. He suggested that it might be ' ' expedient
to place the business of reporting on petitions in some
other channel, as the pressure of his official duties, in
addition to the extra business of the inquiry into the
Treasury Department, will not permit him to pay that
seasonable and prompt attention to these petitions which
the parties expect, and have just claim to.'"^
The first and most obvious result of Republican con-
trol of the House was the end of Hamilton's influence in
financial legislation. Unable, or rather unwilling, to
accept propositions regarding revenue from the Treas-
ury, the new majority was compelled to evolve some new
machinery for handling its financial work. Even to many
of them the idea of leaving everything to the committee
of the whole seemed hardly practicable, so a select com-
mittee was appointed to find out what, if any, additional
revenue would be needed, and to report ways and means
for raising the necessary sums." Even this seemingly
constitutional plan was looked upon with suspicion by
some arch-democrats. Page, for instance, said that of
the two evils, he really preferred dependence upon the
The Republican contention that the committee of the
whole was the real revenue raising body was given defi-
nite expression in the new rules adopted for the next
make us doubt our very senses, by assuring us, that both the walls of the
one, and the intricacy of the other, are sufficiently luminous for the purposes
of government. The full light shortly to be expected from one opaque
body, (Sen) gives us a gleam of hope, that the other may one day be also
elucidated. ' '
13 Annals, 3 Cong. 1, 475.
154 DEVELOPMENT OF LAWMAKING
session. Henceforth every proposal regarding a tax had
to be discussed in committee of the whole, and the House
itself was forbidden to make any increase in the amount
of any proposed tax until such increase had been sanc-
tioned by the committee of the whole. In like manner all
appropriations were to be first moved and discussed in
committee of the whole.^®
Apparently realizing that so much opposition would
render his services useless, Hamilton soon withdrew
from oflSce. So far as ejecting him was concerned, the
Republican efforts had been crowned with success."
Republican supremacy in the House seriously inter-
fered with the course of systematic, orderly legislation
to which that body was becoming accustomed. It was the
Federalist party organization rather than any improve-
ment in procedure as such which had made possible the
rapid transaction of business. Once their generalship
was rendered useless, the House began to drift. The
Republicans at first could boast neither organization nor
leadership, and worse still they had no constructive
policy. The only bond which held them together was
their common distrust of Hamilton, and when his power
in the House was broken, the party was left on the verge
of collapse. "The influence of the Ex. on events," wrote
Madison in May, 1794, ''the use made of them, and the
public confidence in the P. are an overmatch for all the
16 Annals, 3 Cong. 2, 881.
17 Hamilton left office in January, 1795. His withdrawal did not, how-
ever, prevent Washington from calling upon him for advice. "Although
you are not in the administration ... I must, nevertheless (knowing how
intimately acquainted you are with all the concerns of this country,),
request the favor of you to note down such occurrences as, in your opinion,
are proper subjects for communication to Congress at this next session —
and particularly as to the manner in which this treaty should be brought
forward to that body; as it will, in any aspect it is susceptible of receiv-
ing, be the source of much declamation, and will, I have no doubt, produce
a hot session." Washington to Hamilton, August 31, 1795. Hamilton,
Works, VI, 34.
REPUBLICANISM IN THE HOUSE 155
efforts Republicanism can make. The party of that
sentiment in the Senate is completely wrecked; and in
the H. of Reps in a much worse condition than at an
earlier period of the session.'"^
Republican incompetence was most clearly revealed
in their attempts to deal with problems of finance. Their
great object was to restore to the House its control over
revenue, but when they found themselves confronted
with the disagreeable task of raising money, they were
completely at sea. The committee appointed March 26
held daily sessions to work out plans, but progress was
very slow. The ''fiscal party," as Monroe called the
Federalists, urged additional duties on imports, but the
''citizen party" favored a tax on land. They "seem
backward on the subject in every view:" wrote Monroe,
and "regret that an occasion has been made for any
great increase. . . . The fiscal party say to the other,
you have taken the business from the Tre'y- department,
shew y 'rselves equal to it, & bring forward some system.
The latter replies, the practice of reference has been
condemned by the publick voice as other things will be
when understood ; the rejection of it is a triumph of the
people and of the constitution over their & its abuse ; but
the provision of taxes is not more the duty of those who
have been active in the rejection than of those who
opposed it. If it is more the duty of one than of the
other side, it is particularly that of those who have made
taxes necessary. "^^
It was perhaps only natural that the Republicans
should spend more time in bemoaning the need of taxes
than in devising ways and means. But the depths of
their ignorance concerning matters political could not
be more clearly revealed than it was in this letter. The
18 Madison, Writings, VI, 216.
19 Monroe, Writings, I, 290.
156 DEVELOPMENT OF LAWMAKING
''citizen party" seemed convinced that even though the
Federalists were in the minority, they might still be held
responsible for doing the work.
In commenting on the new regime the Federalists made
no attempts to conceal the depths of their disgust. ' ' The
business of Congress this session," wrote John Adams,
''is dulness, flatness, and insipidity itself. "^° Ames in
his usual graphic style complained that: "Congress is
too inefficient to afford the stuff for a letter. No pub-
lic body exists with less energy of character to do good,
or stronger propensities to mischief. We are French-
men, democrats, antifeds; every thing but Americans,
and men of business. "^^
These difficulties were due partly to the want of real
organization within the party itself, and partly to the lack
of effective legislative machinery. The financial depart-
ment in particular was, to quote Gallatin, "quite
vacant. "^^ Since it was perfectly obvious, even to the
Republicans themselves, that an inactive majority could
not' hope to retain popular confidence, the party was
forced to bestir itself.
With the appearance of Gallatin in the House in the
fourth Congress, everyone looked forward to an active
session.^^ The most pressing problem was the financial
one. Although it had been created to act as the agent
of the House in such matters, the Treasury department
had come to be looked upon with suspicion, and as a good
Republican Gallatin could not consent to a restoration
of the former relationship. His political creed called for
a more extensive participation in governmental affairs
by the House of Representatives than Hamilton con-
20 Adams, Letters to His Wife, II, 171.
21 Ames, Works, I, 169,
22 Adams, Gallatin, p. 157, contains Gallatin 's own very able analysis of
23 Gibbs, Fed. Adm., I, 297.
EEPUBLICANISM IN THE HOUSE 157
sidered either necessary or wise. In Pennsylvania Gal-
latin had become familiar with the standing committee
of ways and means, and he secured the appointment of
a similar committee in the national House.^* The com-
mittee was appointed to '^ superintend the general opera-
tions of finance." In particular it was expected to re-
port from time to time on the state of the public debt, and
on revenue and expenditure.^^ Henceforth, instead of
depending on the Secretary of the Treasury for its finan-
cial policy, the House would look to one of its own com-
mittees. In this way the vacancy created by the over-
throw of the earlier agent of the House was partly filled.
At about the same time two more standing committees
were appointed, one on claims, and the other on com-
merce and manufactures. The origin of the later com-
mittee on post offices and post roads can be traced back
to this fourth Congress, although it did not become one
of the regular standing committees until later.-*^
The appointment of these standing committees, partic-
ularly of that of ways and means, was in a way a mani-
festation of the Republican theory of government. From
their point of view, the members of the House, as the
direct representatives of the voters, ought to be the main-
spring of the whole system. Hitherto, the aristocratic
Federalists had sold their birthright by permitting the
executive to take a more active part in the government
than was warranted by the Constitution. The Republi-
cans now planned to bring about the proper balance
between the different branches, by broadening at once
the scope of the operations of the House, and restricting
the executive. It was the better to enable the House to
take its assigned part that the new type of organization
24 Adams, Gallatin, p. 157; Gibbs, Fed. Adm., I, 443.
25 Annals, 4 Cong. 1, 152, 159; 4 Cong. 2, 1668.
26 Ibid., 3 Cong. 2, 877; 4 Cong. 1, 127, 143, 159; 4 Cong. 2, 1598.
158 DEVELOPMENT OF LAWMAKING
was worked out. Just as the heads of departments were
looked upon as agents of the executive, so the committees
would be considered as the agents of the House. Ames
seems to have given expression to the prevalent opinion
when he wrote that "committees already are the minis-
This theory of House supremacy was expressed in
another way, in 1796, when the Republicans were trying
to abolish the mint. After some discussion there seemed
to be an impression that a bill for that purpose would be
defeated in the Senate, or vetoed by the president in
case it should reach him. Giles thereupon asserted that
the House was under no obligation to await action by the
other factors in legislation. The representatives of the
people could put an end to the objectionable institution
themselves, merely by withholding appropriations."
When the question of appropriating the amount called
for by the Jay Treaty was laid before the House, the
same idea was brought out even more forcibly. Accord-
ing to the Republicans, in any matter pertaining to
finance the decision of the House was final, and binding
upon all other departments. Consequently the House
had a perfect right to refuse to make the appropriations
if it saw fit. Thus by declining to act it might prevent
the treaty from becoming operative, even though formal
ratification had already taken place.
To the frightened Federalists these measures of their
opponents could have but one object: the overthrow of
all the other departments of the government. Ames in
particular felt that the new policy was full of danger.
"Such a collection of Secretaries of the Treasury," he
wrote in 1795, * ' so ready on questions of peace, war, and
treaty, feel a competence to every thing, and discover to
27 Hamilton, Worlcs, VI, 201.
28 Annals, 4 Cong. 1, 259-260.
REPUBLICANISM IN THE HOUSE 159
others an incompetence for any thing, except what, by
the Constitution, they should be, — a popular check on the
other branches. To prevent usurpation or encroachment
on the rights of the people, they are inestimable ; as exec-
utive agents, which our disorganizers contend for, they
are so many ministers of destruction. ' '^^ Later he criti-
cised the House because it affected 'Ho engross all the
active and efficient powers of the other branches to them-
selves, as our folks do. A House that will play Presi-
dent, as we did last spring. Secretary of the Treasury, as
we ever do, &c., &c., will play mob at last. Unless it is
omnipotent, the members will not believe it has the means
of self-defence. '"° John Adams wrote that: ** There are
bold and daring strides making to demolish the Presi-
dent, Senate, and all but the House, which, as it seems to
me, must be the effect of the measures that many are
urging.'"^ Likewise Goodrich expressed the belief that
the Republicans were aiming at "a total overthrow of
the executive systems.'"^
This Federalist interpretation is not wholly accurate,
for it fails to take into account the Republican attitude
toward the popular branch of the legislature. Far from
trying to overthrow the Constitution, they were trying
to reestablish it. To be sure, political intuition would
lead them to emphasize the importance of the only branch
of the government under their control, but at the same
time there is no valid reason for seriously questioning
their good faith so early.
29 Ames, Works, I, 161.
30 Ibid., 212-213.
31 Adams, Letters to His Wife, II, 210. The same idea, expressed in
almost the same words, appeared in the Columbian Centinel on April 27,
1796. It was asserted that the aim of the majority was to "destroy the
Executive, to usurp and engross to the House all the powers of the Presi-
dent and Senate. ' '
32Gibbs, Fed. Adm., I, 337; Ames, Works, I, 212; of. Columbian Cen-
tinel, March 24, 1798.
160 DEVELOPMENT OF LAWMAKING
If Federalist accounts are to be trusted, the new sys-
tem inaugurated by the Eepublicans was not a success.
Committees apparently did not fill the places left vacant
by the secretaries. The most important of them all, the
committee of ways and means, incurred the unlimited
contempt of the Federalists. This new head of the
financial system had not, so Ames believed, "written a
page these two years. It collects the scraps and fritters
of facts at the Treasury, draws crude hasty results tinc-
tured with localities. These are not supported by any
formed plan of cooperation with the members, and the
report calls forth the pride of all the motion-makers."^'
Moreover, there seemed to be a feeling that the com-
mittee chairmen might become too conspicuous. They
had special privileges in the way of access to important
documents, and some Republicans felt that they were
nearly as dangerous to liberty as the secretaries had
been. This impression was responsible for much of the
jealousy and rivalry that disturbed the party leaders.'*
In general it may be said that the fourth Congress was
characterized by that hesitation and general disinclina-
tion to assume responsibility for which the Republicans
were becoming notorious. '' 'Tis true the disorganizers
have now the power to bring forward their systems of
reform," wrote Goodrich, ''and that they dare not — it
would create a responsibility which above all things they
fear ; we think the leaders were never more discontented
with their lot than at present."'^
They might have been pardoned for their failure to
produce a general system of legislation, on the ground
that their measures would never receive the approval of
33 Hamilton, Works, VI, 202.
34 Gibbs, Fed. Adm., I, 443.
35 Ibid., I, 298 ; * ' Hence, eternal speeches, captious criticisms, and new
projects, are found to consume all the time which ought to be devoted to
business." Hid., p. 443.
REPUBLICANISM IN THE HOUSE 161
a hostile president. But revenues were needed, and as
they had arrogated to themselves full control of finance,
they might be criticised for lack of initiative in that par-
ticular field. Instead of showing any inclination to
formulate plans they simply drifted along and did
The Republican failure in the House was due, not as
at first to the lack of able leadership, because Gallatin
and Giles were both skilled politicians, but to the absence
of harmony and cooperation within the party itself.
The leaders did not have the rank and file under very
strict discipline, and the members themselves displayed
an unseemly inability to get along with each other. Fed-
eralist commentators dwelt upon this characteristic.
Goodrich wrote: ''I believe there never was a public
body deserved less the public confidence ; who were more
ignorant, vain and incompetent, than the majority of
the present House of Representatives. The whole ses-
sion has been a disgraceful squabble for power, and a
display of unworthy passions."" **The conduct of Con-
gress is a political phenomenon," wrote Wolcott, '^over
which I would if possible draw a veil; but it cannot be
concealed that there has been no system, no concert, no
pride, and no industry."^* Ames in his uncomplimen-
tary manner wrote with reference to the same subject:
''Much is not done or attempted, and I perceive (inter
nos) the temper and objects of the members are marked
with want of due reflection and concert, and indicate the
proneness to anarchy, and the self-sufficient imbecility
of all popular bodies. . . . '"^ Then to the former
36 Gibbs, Fed. Adm., I, 304, 321.
ST Ihid., I, 327; cf. Adams, Letters to His Wife, II, 220: "A few
outlandish men in the House have taken the lead, and Madison, Giles and
Baldwin are humble followers."
38 Gibbs, Fed. Adm., I, 443.
39 Ames, Worlcs, I, 212.
162 DEVELOPMENT OF LAWMAKING
Federalist chieftain he wrote: *'But the apathy and
inefficiency of our body is no secret to you. We are gen-
erally in a flat calm, and when we are not we are near
sinking in a tempest. When a sovereign convention
engrosses the whole power, it will do nothing or some
violence that is worse. . . . "*° To another Federalist
he sent the following: *'It is no easy matter to combine
the anarchical opinions, even of the good men, in a popu-
lar body. We are a mere militia. There is no leader, no
pomt de ralliement. The motion-makers start up with
projects of ill-considered taxes, and by presenting many
and improper subjects, the alarm to popular feelings is
When the fifth Congress was called together in extra
session in 1797, it was evident that the Kepublicans had
practically lost their hold on the House. Jefferson, who
knew whereof he wrote, reported that: ''The non-
attendance of 5. or 6. of that description, has left the
majority very equivocal indeed. A few individuals of no
fixed system at all, governed by the panic or prowess of
the moment, flap as the breeze blows against the repub-
lican or the aristocratic bodies, and give to the one or the
other a preponderance wholly accidental.""
From then on until the election of 1800 the Federalists
retained control of the government, and during this
interval, the period of the Alien and Sedition Acts and
the Judiciary Act, the Republicans were forced back into
the role of the minority.*^
40 Hamilton, Works, VI, 202.
41 Ames, Works, I, 214.
42 Jefferson, Works, VII, 145.
43 While they were not very powerful, they were sometimes able to
embarrass the majority party. Jefferson records one instance where the
Republicans were able to carry their point by means of some rather sharp
parliamentary practice. In 1798 some peace resolutions were introduced
into the House. He wrote that they were offered ' ' in committee, to prevent
their being suppressed by the previous question, & in the eommee on the
state of the Union, to put it out of their power, by the rising of the
EEPUBLICANISM IN THE HOUSE 163
Upon their return to power the Federalists at first
made no attempt to restore the former connection be-
tween the House and the Treasury department, or to
break down the committee system which the Republicans
had established. Even the committee of ways and means
was allowed to remain, although it was a constant
reminder of the four-year eclipse of the Federalists.
That policy of non-interference with Republican insti-
tutions may have been conditioned by Gallatin's influ-
ence in the House, which was still strong enough to draw
a complaint from Wolcott.**
In 1800, however, by a vote of 43 to 39, the House
reestablished the Federalist system. On May 9 a bill
was passed, authorizing the Secretary of the Treasury to
lay before Congress at the beginning of every session a
report on the subject of finance, "together with such
plans for improving the revenue as may occur to him."*^
In good Republican fashion Gallatin and Nicholas
opposed the measure on constitutional grounds. Since
all money bills must originate in the House, the secretary
had no right even to '^propose anything that should
originate any money bill." After their defeat on that
measure, the Republicans did little until after the elec-
tion of Jefferson, when they had everything their own
The striking feature of this period is the poor showing
commee & not sitting again, to get rid of them." These resolutions, the
"result of the united wisdom and deliberation of the opposition party,"
and the method of handling them show that the Jeffersonians were by no
means powerless at the time. Annals, 5 Cong. 2, March 27, 1798; Jefferson,
Works, VII, 224; Columbian Centinel, April 4, 1798.
** Wolcott wrote that while the revenue did not fall off as he had feared
it would, nevertheless ' ' the management of the Treasury becomes more
and more difl&cult. The Legislature will not pass laws in gross. Their
appropriations are minute. Gallatin, to whom they yield, is evidently
intending to break down this department, by charging it with an imprac-
ticable detail," Hamilton, Works, VI, 279.
45 Annals, 6 Cong. 1, 709.
164 DEVELOPMENT OF LAWMAKING
of the Republicans. According to their theories, the
House of Representatives ought to have been the most
important factor in the government, but as a matter of
actual record, it was nothing but a drag on the adminis-
tration. This unfortunate inability to act might at first
sight seem to have been the ordinary deadlock which
comes when president and Congress are of different par-
ties. A closer examination, however, shows that the Re-
publicans gave evidence of no ability even in the field of
opposition. They were so situated that they might have
embarrassed the administration by sending up bills to
be signed, as Congress is wont to do when it does not
agree with the president, but they were in no condition
to do that. The real cause of their trouble was lack of
unity in their own ranks. The Republicans were per-
meated with that intense individualism or spirit of sepa-
ratism which made real cooperation impossible.
Some of the Republican leaders were gradually learn-
ing that their theories of government, good as they were,
counted for little without the very necessary capacity
for constructive action. Those traitors to democracy,
the Federalists, had found the secret of success in a
well-organized party. Could the champions of popular
rights discover methods equally effective, and at the same
time consistent with their loudly proclaimed principles?
Or would they depart from the paths of political recti-
tude, from the worship of the spirit of democracy, and
follow after the strange gods of the Federalists, because
those gods guaranteed results?
THE JEFFERSONIAN REGIME
^ When Jefferson was inaugurated in 1801, he might
well have observed that a president's worst foes are
those of his own political household. Had he not been
an incorrigible optimist he would have been discouraged
at the very start. During the four years when they con-
trolled Congress his followers had conducted themselves
in such a manner as to inspire neither pride in the past
nor confidence in the future. His stiff-necked associates
had not been able even to make good political capital out
of their control of the House. Whether or not the Repub-
licans could be made to act together long enough to put
through the Jeffersonian reforms was an open question.
If deliberate expression of principle counted for any-
thing the new president could be trusted to observe the
constitutional barriers which separated him from Con-
gress. There would be no extra-legal interference of the
Hamiltonian style when he was in charge. After his
election to the vice-presidency in 1797 he explained how
executive officials ought to conduct themselves. ''As to
duty," he wrote, ''the constitution will allow me only as
a member of a legislative body; and it's principle is, that
of a separation of legislative, executive & judiciary
functions, except in cases specified. If this principle be
not expressed in direct terms, yet it is clearly the spirit
of the constitution, & it ought to be so commented &
acted on by every friend of true government."^
Some of the Federalists, however, were not sure that
1 Jefferson, Works, VII, 108.
166 DEVELOPMENT OF LAWMAKING
Jefferson would obey his own dictum. John Marshall,
for instance, prophesied that there would be a very inti-
mate relationship between the incoming president and
his party following in Congress. *'Mr. Jefferson," he
wrote, ' ' appears to me to be a man who will embody him-
self with the House of Representatives. By weakening
the office of President, he will increase his personal
power. He will diminish his responsibility, sap the
fundamental principles of the government, and become
the leader of that party which is about to constitute the
majority of the legislature.'"
Certainly in 1797, and perhaps in 1801, Jefferson
would have indignantly repudiated those principles
which, as Marshall foretold, later became the very foun-
dation of his administration. As a philosopher and
speculative statesman, before experience had compelled
him to discard certain cherished ideas, he could profess
belief in the constitutional doctrine of legislative inde-
pendence. As the head of the government, and the leader
of a badly organized group of politicians, however, he
had to ignore his own interpretation of the constitution.
The atmosphere of practical politics is not conducive to
the long-continued existence of pure theory.
It is not necessary to go far in order to discover why
Jefferson's philosophy of government could not be trans-
lated into actual practice. In the first place the funda-
mental conceptions of his party-following made harmony
of action almost impossible. The Eepublicans were the
individualists of the day, men who looked askance at any
attempt to control their opinions or their actions. Had
they not reviled the Federalists for their base subser-
viency to Alexander Hamilton?
This suspicious attitude toward able leadership was
made chronic by the role forced upon the party during
2 Hamilton, Worlcs, VI, 501-503.
THE JEFFERSONIAN REGIME 167
much of the Federalist period. Originally the Republi-
cans had been the party of opposition and protest. At
that time habits had been formed which could not be
easily shaken off when the party was placed in full con-
trol of the government. Even when the Republicans
controlled the House from 1793 to 1797, their organiza-
tion had been far from effective, and they really accom-
plished nothing in the way of constructive work. Jeffer-
son's inauguration in 1801 did not bring about any
miraculous transformation in the habits of his party,
nor did it make his recalcitrant followers one whit more
docile. As president his position was far from enviable.
During both terms relations between the United States
and the belligerent powers of Europe were always in a
critical condition. Whatever policies he adopted were
practically sure to meet with the unconditional condem-
nation of the Federalists, to whom nothing that Jeffer-
son ever did or could do seemed good. To make matters
worse, he was constantly worried and harassed by want
of harmony and by factional controversies within the
ranks of the Republicans themselves. Members of his
party found it very difficult to agree with each other or
with their chief.
A clear appreciation of this state of unstable equilib-
rium is essential to any understanding of the history of
Congress, and of its relation to the president during this
period. Under normal conditions there probably would
have been no such striking discrepancy between Jeffer-
son's constitutional philosophy and his conduct as presi-
dent. The difficulties in which he found himself involved
as leader of his party furnish the key to the Jeffersonian
After the transfer of Gallatin to the Treasury depart-
ment the unenviable task of guiding the administration
party in the House fell to William B. Giles of Virginia.
168 DEVELOPMENT OF LAWMAKING
He was not without ability as a leader, and while he was
in attendance friction within the ranks was visibly re-
duced. Unfortunately for the Republican organization
in Congress, he had political aspirations in his own state
which prevented him from spending all his time in Wash-
ington. The Washington Federalist, not an unprejudiced
authority to be sure, but trustworthy when supported by
evidence from other sources, had much to say concerning
the difficulties encountered by the new rulers in handling
their own party associates. ''In the House of repre-
sentatives M. Giles leads the ministerial phalanx, and is
the only member of it whose capacity is adequate to
the conducting measures of the party. Mr. Randolph
attempted to lead, but failed ; . . . Mr. Giles went home
some time ago, and in his absence many of his subalterns
claimed the command; the consequence was they split
and divided among themselves daily. On the return of
Mr. Giles a grand caucus was held in the assembly room
here, he amalgamated the party; they agreed there
should for some days be a dumb legislation; that they
would act but not debate. This strong proof of subor-
dination was not refused to Mr. Giles, and nothing was
said for two days by the ministerial party." The real
purpose of this manoeuvre, the account continued, "was
to muzzle some of their party who had become trouble-
More than a month later the same paper contained
the following: "It is believed that unless the speaker
should add more federalists to the committees appointed
to transact the business of Congress that they will not
be able to adjourn or complete the necessary business
between this and the last of October. The Chancellor of
the Exchequer (Mr. R) has been found altogether inade-
3 Wash. Fed., February 17, 1802. Annals, 7 Cong. 1, 666; Giles ia
referred to here as "the premier, or prime minister of the day ..."
THE JEFFEESONIAN REGIME 169
quate to the discharge of his financial functions, the bill
he introduced repealing the internal taxes was found to
be so defective as to require an amendment of twice the
length of the original bill. The chancellor's knowledge
of parliamentary proceedings is not less defective, than
his skill in fiscal concerns ; . . . Farmer Giles has now
arrived, and will no doubt speedily resume the com-
mand."* In a letter to the editor, in which he discussed
the Eepublican difficulties, one Federalist wrote that
' * The ministerialists here are in a most distressed situa-
tion. Mr. Giles and Mr. Mason have both gone home,
each it is said with the patriotic intention of becoming
governor of Virginia. — Unless they speedily return, it
is believed that the President's sect in the House of
Representatives will be obliged to relinquish the goodly
work of reform for want of sufficient acquaintance with
business to mature their plans and to carry them into
execution. ' '^
Jefferson himself was by no means blind to the short-
comings of the legislature. ' ' Congress is not yet engaged
in business of any note. We want men of business among
them. I really wish you were here. I am convinced it is
in the power of any man who understands business, and
who will undertake to keep a file of the business before
Congress and press it as he would his own docket in a
court, to shorten the sessions a month one year with
another and to save in that way 30,000 D. a year. An ill-
judged modesty prevents those from undertaking it who
are equal to it."® An interesting letter from Randolph
to Gallatin tells the same story. *'By the way, I think
you wise men at the seat of government have much to
answer for in respect to the temper prevailing around
you. By their fruit shall ye know them. Is there some-
* Wash. Fed., March 25, 1802.
B Ibid., March 27, 1802.
6 Jefferson, Writings, VIII, 187.
170 DEVELOPMENT OF LAWMAKING
thing more of system yet introduced among you? or are
you still in chaos, without form and void?'"
Jefferson frequently reverted to the subject. With
reference to the Louisiana purchase, he wrote De Witt
Clinton that there was more difference of opinion in
Congress than he had expected, and that "our leading
friends are not yet sufficiently aware of the necessity of
accomodation & mutual sacrifice of opinion for conduct-
ing a numerous assembly, where the opposition too is
drilled to act in phalanx on every question. ' '^ In another
letter to Eodney he expressed regret at his proposed
retirement. "I had looked to you as one of those calcu-
lated to give cohesion to our rope of sand. You now see
the composition of our public bodies, and how essential
system and plan are for conducting our affairs wisely
with so bitter a party in opposition to us. ... ' '®
In January, 1805, referring to a letter from Gallatin
in which he seems to have complained about the same
difficulties, Dallas wrote, ' ' It is obvious to me that unless
our Administration take decisive measures to discounte-
nance the factious spirit that has appeared, unless some
principle of political cohesion can be introduced into our
public councils as well as at our elections, and unless men
of character and talents can be drawn . . . into the legis-
lative bodies of our government . . . the empire of
Republicanism will moulder into anarchy, and the labor
and hope of our lives will terminate in disappointment
In 1806 one of the most famous of Jefferson's floor
leaders broke with the administration. If the uncompli-
mentary remarks of the Washington Federalist were
deserved in 1802, they were not in 1805, for by that time
7 Adams, Gallatin, p. 317.
8 Jeflferson, Writings, VIII, 282-283.
9 Ibid., 296.
10 Adams, Gallatin, p. 327.
THE JEFFERSONIAN REGIME 171
Randolph had become one of the mainstays of the party."
Yet the very fact that he was so powerful was an element
of weakness in the party itself. While they respected
his talents as a general, his associates hated him for his
overbearing manner and his caustic tongue. Yet men
followed him and 'Woted as was right," as Jefferson
naively put it, as long as he supported the administra-
tion.^^ But Randolph was by nature a man of the oppo-
sition, so that when his own party was in the ascendant
he was driven to take the other side. In 1820 Randolph
himself analyzed his own eccentric character for the
benefit of his colleagues in Congress, and the abstract of
his remarks is well worth quoting. He had served in
Congress almost twenty years, he said, *' nearly four-
teen of which — just double the time . . . that Jacob
served for Rachel, had been spent in opposition to what
is called government," for he ''commenced his political
apprenticeship in the ranks of opposition; . . . and
could he add fourteen more to them, he supposed some
political Laban would double his servitude, and condemn
him to toil in the barren field of opposition: for he
despaired of seeing any man elected president whose
conduct he should entirely approve — he should never be
in favor at court, as he had, somehow, as great an alac-
rity at getting into a minority as honest Jack Falstaff
had at sinking. It was, perhaps, the place he was best
fitted for . . . as he had not strength to encounter the
details and drudgery of business ; habit had rendered it
familiar to him; and after all, it was not without its
sweets as well as its bitters since it involved the glorious
privilege of finding fault — one very dear to the depraved
11 Adams, Gallatin, p. 363, Gallatin to his wife : ' ' Varnum has, much
against my wishes, removed Eandolph from the Ways and Means and
appointed Campbell, of Tennessee. It was improper as related to the public
business, and will give me additional labor. ' '
12 Jefferson, Writings, VIII, 447-450.
172 DEVELOPMENT OF LAWMAKING
condition of poor human nature.'"^ It seems strange
that Jefferson should have trusted such a leader, who
could be depended upon for nothing except perhaps to
fly off on some tangent at a very inopportune time.
There is evidence that as early as 1804 he was discon-
tented with his position. He wrote Grallatin, partly in
jest perhaps, that he had been ''pestered" with inquiries
about public affairs. He found it impossible to answer
them, and he expressed considerable satisfaction when
he learned that the "Chancellor of the Exchequer and
First Lord of the Treasury" was equally unable. Then
the letter continued : " In short, I like originality too well
to be a second-hand politician when I can help it. It is
enough to live upon the broken victuals and be tricked
out in the cast-off finery of you first-rate statesmen all
The immediate occasion of his fall from grace was a
combination of the Yazoo land business and Jefferson's
attempt to force through an appropriation for the pur-
chase of Florida.^^ In the Florida affair Eandolph as
chairman of the committee of ways and means was
expected to move the appropriation of the necessary two
million dollars for the purchase. He refused to act, and
finally the government measures were carried in spite
of the refractory chairman. This attempt to deprive
him of his position as House leader so exasperated
Randolph that, greatly to the delight of the Federalists,
he turned his fiery denunciations against his former
The fact that his defection did not disrupt the party
speaks well for the political skill of the president and
13 Annals, 16 Cong. 1, 1465,
14 Adams, Gallatin, p. 324.
15 For a full account of these matters see Adams, Gallatin, pp. 328-329,
18 J. Q. Adams, Memoirs, I, 418,
THE JEFFERSONIAN REGIME 173
Ms Secretary of the Treasury. Jefferson took pains to
assure Ms friends that Randolph's action really left the
party stronger than it had been before.^''
A year after this episode Jefferson found it necessary
to procure a new leader for the House. In February,
1807, he wrote to Wilson Cary Nicholas: "Mr. T. M.
Randolph is, I believe, determined to retire from Con-
gress, and it is strongly his wish, & that of all here, that
you should take his place. Never did the calls of patriot-
ism more loudly assail you than at this moment. After
excepting the federalists, who will be 27., and the little
band of schismatics, who will be 3. or 4. (all tongue),
the residue or the H of R is as well disposed a body of
men as I ever saw collected. But there is no one whose
talents & standing, taken together, have weight enough
to give him the lead. The consequence is, that there is
no one who will undertake to do the public business, and
it remains undone. Were you here, the whole would
rally round you in an instant, and willingly co-operate in
whatever is for the public good. Nor would it require
you to undertake the drudgery in the House. There are
enough, able & willing to do that. A rallying point is
all that is wanting. Let me beseech you then to offer
yourself. You never will have it so much in your power
again to render such eminent service."^® This letter
hardly harmonizes with the president's earlier views
regarding the relation between executive and legislature.
The material quoted above explains why Jefferson, the
great champion of democracy, has the reputation of being
an autocrat in his dealings with Congress. All his work
was done amidst forces of disruption that constantly
threatened his plans with failure. Under such conditions
he was confronted with the bitter choice of permitting
17 Jefferson, Writings, VIII, 428, 434, 441, 447-450.
18 Hid., IX, 32.
174 DEVELOPMENT OF LAWMAKING
internal weaknesses to wreck his party, or of throwing
away his theories and taking full charge of the manage-
ment of the legislature. No good politician could con-
sider the first alternative, and Jefferson was nothing if
not a good politician. Naturally he chose the second.
He and Gallatin had guided the party before 1801, and
Hamilton's success showed conclusively that Congress
could if necessary be led from outside.
And yet, just as surely as executive officials undertook
to manage legislation, there would be immediate and
forceful protests. The dilemma was clearly perceived
by Jefferson. ''Our situation is difficult;" he wrote to
William Duane in 1806, "& whatever we do is liable to
the criticisms of those who wish to represent it awry. If
we recommend measures in a public message, it may be
said that members are not sent here to obey the mandates
of the President, or to register the edicts of a sovereign.
If we express opinions in conversation, we have then our
Charles Jenkinsons, & back-door counsellors. If we say
nothing, 'we have no opinions, no plans, no cabinet.' In
truth it is the fable of the old man, his son & ass, over
again. ' "®
The president had learned, if his followers had not,
that the Republicans had made a mistake in criticising
so vigorously the Federalist organization constructed by
Hamilton. It took very little experience as head of the
administration to convince the more clear-headed Repub-
licans that their opponents had hit upon the only prac-
tical plan of actual government. The constitutional
separation of executive and legislature would not work
in everyday practice, and the very logic of facts drove
the Jeffersonians into the paths blazed by their "aristo-
The comprehensive scope of Jefferson's activity as
19 Jefferson, Writings, VIII, 431-433.
THE JEFFERSONIAN RfiGIME 175
president was well described by the two senators from
Massachusetts. John Quincy Adams wrote concerning
the proposed Florida purchase: ''The measure has been
very reluctantly adopted by the President's friends, on
his private wishes signified to them, in strong contradic-
tion to the tenor of all his public messages. His whole
system of administration seems founded upon this prin-
ciple of carrying through the legislature measures by his
personal or official influence. There is a certain pro-
portion of the members in both Houses who on every
occasion of emergency have no other enquiry but what is
the President's wish. These, of course, always vote
accordingly. Another part adhere to him in their votes,
though strongly disapproving the measures for which
they vote. A third float in uncertainty ; now supporting
one side of a question and now supporting the other, and
eventually slinking away from the record of their votes.
A fourth have the spirit even to vote against the will of
their leader. . . . This is, however, one of those tempo-
rizing experients the success of which is very doubtful.
If a really trying time should ever befall this adminis-
tration, it would very soon be deserted by all its troops,
and by most of its principal agents. Even now they
totter at every blast. ' '-" Senator Pickering wrote in the
same way at about the same time. He reported that
Jefferson tried ''to screen himself from all responsibil-
ity, by calling upon Congress for advice and direction.
. . . Yet with all this affected modesty and deference, he
secretly dictates every measure which is seriously pro-
posed and supported; and there are creatures mean
enough to suggest, from time to time, that such is the
These statements, made by men whose testimony is
20 J. Q. Adams, Memoirs, I, 403, February 7, 1806.
21 Pickering MSS., XXXVIII, 102^e, February 2, ]806.
176 DEVELOPMENT OF LAWMAKING
to be trusted, because it is supported by enough corrob-
orative evidence, hardly harmonize with Jefferson's
own theory of government, but they do show that the
' ' Sage of Monticello ' ' was an eminently practical man.
It is evident that both in methods and in effectiveness
the Republican legislative machine differed little from
that evolved by the severely criticised Federalists. The
president and his Secretary of the Treasury were re-
sponsible for the main outlines, and in some cases for
the details as well, of party measures. Policies were
evolved, programs laid before Congress, and bills passed, 1
all under the watchful eye of the chief executive. Jeffer-
son was so successful that he was called a tyrant, but
his methods were more like those of the Tudor kings
than of the Italian despots. Everything that he did had
to be done through Congress. Congress to be sure was
usually ready to follow Jefferson's lead, but the com-
pliance of that body was due to nothing else than the
constant and never ending vigilance of Jefferson and
In one important particular Jefferson improved upon
Federalist legislative methods. Hamilton had his fol-
lowers in Congress, and there was usually some one
leader of prominence in charge of the party forces, but
this floor leader was not looked upon as the personal
representative of the president himself. He was rather
an assistant to the Speaker. From 1801 to 1808 the floor
leader was distinctly the lieutenant of the executive.
William B. Giles, who was actually referred to as ''the
premier, or prime minister," Caesar A. Rodney, John
Randolph of Roanoke, and Wilson Cary Nicholas all held
that honorable position at one time or another. It was
their duty to look after party interests in the House, and
in particular to carry out the commands of the president.
The status of these men was different from that of the
THE JEFFERSONIAN REGIME 177
floor leader of to-day, who is given his position because
of long service in the House. They were presidential
agents, appointed by the executive, and dismissed at his
pleasure. The letters to Rodney and Nicholas, quoted
above, show that in at least two cases Jefferson actually
urged men to run for Congress in order to act as his lieu-
tenants. When Randolph refused to comply with the
president's wishes in the Florida affair, he was reduced
to the ranks and Nicholson took charge, until Jefferson
could persuade Nicholas to enter Congress.
In view of these facts, it is not surprising that Macon
and Varnum, the two Speakers during this period, should
have left such indistinct traces in the records of Con-
gress. To be sure they were chosen by their party asso-
ciates in the House, but they were never given authority
over them. Leadership was neither the prerogative of
seniority nor a privilege conferred by the House ; it was
distinctly the gift of the president. It might be added
that in just what section of the Constitution he found
his sanction for such a practice the prince of strict con-
structionists never told.
Jefferson made it evident that his interest in Con-
gress did not cease with the appointment of a floor leader.
On the contrary conferences with his agents were fully as
important as cabinet meetings themselves. Personal
work with the leaders was in some cases the only way of
securing favorable action on his policies. In 1804, when
Congress was at work on the Louisiana government bill,
the leaders planned to put the system into operation at
the close of the session. Jefferson wanted to make Mon-
roe governor of the territory, but the latter could not
return from France in time to begin his work so soon.
Jefferson therefore did not want the bill to go into imme-
diate effect, and in * * private conversations demonstrated
to individuals that that is impossible ; that the necessary
178 DEVELOPMENT OF LAWMAKING
officers cannot be mustered there under 6 months.""
That was a case where he could not safely trust to his
floor leader. Later Jefferson referred to his frequent
communications with Randolph and Nicholson as matters
If the Washington Federalist is to be trusted, meas-
ures that did not receive the sanction of the president
met with vigorous opposition in Congress.^* Jefferson's
influence it seems worked both ways.
The passing of the Embargo is usually taken as the
crowning instance of Jefferson's power in Congress,
although very little has come to light in connection with
it which would illustrate his methods of dealing with
that body. Pickering to be sure bitterly complained that
Jefferson ^Hs the government/' but that was his usual
complaint anyway. When the Embargo message was
laid before the Senate, Pickering wrote that ''it was
manifest that the minds of his special agents and of a
decided majority were previously prepared."^''
Perhaps his proposed plan for the purchase of Florida
affords the best example of his success in driving through
a favorite policy in spite of the determined hostility of
some of his own followers. After making up his mind
22 Jefferson, Writings, VIII, 288.
23 Ibid., 468-472. Eeferring to Eandolph 's philippics against the admin-
istration, Jefferson wrote: "He speaks of secret communications between
the executive and members, of backstairs' influence &c, But he never
spoke of this while he and Mr. Nicholson enjoyed it almost solely. But
when he differed from the executive in a leading measure, & the executive,
not submitting to him, expressed it's sentiments to others, (to wit, the
purchase of Florida) which he acknoleges they expressed to him, then he
roars out upon backstairs influence. ' ' Of all men in the Eepublican party
Jefferson should have been the last to attempt to remove the mote of
inconsistency from Eandolph 's eye.
2* Wash. Fed., February 17, 1804. During a debate on a proposal to
authorize the building of two small vessels for the navy, Nicholson came
out in favor of the measure, but John Eandolph argued that "Congress
ought not to adopt the measure, because no intimation of its propriety had
been given by the President."
25 Pickering MSS. XXXVIII, 121-124.
THE JEFFERSONIAN REGIME 179
that troublesome questions in the southeast might be
solved by buying the territory, he began his campaign.
In the first place, he frightened the country by sending to
Congress a veritable war message, stating that American
citizens had been subjected to injury in the Spanish pos-
sessions. ''Some of these injuries," so the message ran,
''may perhaps admit a peaceable remedy. Where that
is competent it is always the most desirable. But some
of them are of a nature to be met by force only, and all
of them may lead to it. I can not, therefore, but recom-
mend such preparations as circumstances call for. ' "® In
a private message, however, he recommended a settlement
similar to the Louisiana purchase. "Formal war is not
necessary — ^it is not probable that it will follow ; " so ran
the second message, "but the protection of our citizens,
the spirit and honor of our country require that force
should be interposed to a certain degree. . . . But the
course to be pursued will require the command of means
which it belongs to Congress exclusively to yield or to
deny."" It was planned to have Congress adopt public
resolutions, in harmony with the spirit of the first mes-
sage, which were drafted by Jefferson himself,^^ after
which the necessary appropriation would be made. Ran-
dolph, the chairman of the committee of ways and means,
refused to act, but under the leadership of Nicholson
Congress finally acceded to Jefferson's wishes.^''
In this connection Pickering asserted that Jefferson
originally planned to purchase the territory first, and
then trust to Congress to sanction the proceedings. Al-
though the project was discussed at a cabinet meeting,
26 Eichardson, Messages, I, 384-385.
27 lUd., 390,
28 Adams, Gallatin, p. 337; Gallatin, Writings, I, 277, 281.
29 J. Q. Adams, Memoirs, I, 403, ' ' The measure has been very reluc-
tantly adopted by the President's friends, on his private wishes signified
to them, in strong contradiction to the tenor of all his public messages."
180 DEVELOPMENT OF LAWMAKING
the Eepublican leaders did not have the courage to fol-
low the initial impulse.^"
In some cases Jefferson took charge of drafting bills,
which were subsequently laid before Congress. In 1804
the cabinet held a meeting to discuss what action should
be taken with reference to the insults to which American
vessels were subjected by foreign men-of-war. The
conclusions of the cabinet were put in the form of a bill,
which the president planned to give to Randolph. Con-
gress, however, had already referred the subject to a se-
lect committee, so the bill was sent directly to a member
of that committee.^^ Again in December, 1805, Jefferson
drafted two bills, one for establishing a naval militia, and
the other for classifying the militia.^^ The classification
bill was adversely reported on by the committee, but
after conversing with individual members Jefferson felt
that the bill would pass. "I had rather have that classi-
fication established," he wrote, ''than any number of
regulars which could be voted at this time.'"^
Mr. Henry Adams refers to the government during
the eight years of the Jeffersonian regime as a triumvir-
ate, with the president and the Secretaries of State and
of the Treasury as the real rulers.^* This was true as far
as the general policy of the government was concerned,
but in the actual processes of legislation Madison had no
concern. He had never shown great skill as a parlia-
mentarian, either in the House of Burgesses or in the
House of Representatives, and his letters are almost de-
30 Pickering MSS. XIV, 155i-f, "there was at least a consultation (if
not a direct proposition from the President) to take the two millions to
remit to Paris, and depend on the willingness of Congress, when it should
meet, to sanction the act: but they were not quite hardy enough to take
this unwarrantable step. ' '
31 Jefferson, Works, VIII, 333-336.
32 Ibid., 403-412.
33 Ibid., 415-416.
34 Adams, Gallatin, p. 269.
THE JEFFERSONIAN REGIME 181
void of references to procedure, either formal or infor-
mal. He was the statesman of the triumvirate, not its
Gallatin on the other hand associated himself with
Jefferson in the actual management of important legis-
lative proceedings, and his previous experience in the
House enabled him to render valuable service. Just as
Francis' hotel had been the rendezvous of the Republi-
can leaders during Adams' administration,^^ so Galla-
tin's house became the recognized headquarters of the
party chieftains in later years. Macon, the Speaker,
Randolph, the floor leader, Nicholson, Nicholas, Baldwin,
and others almost equally prominent in the councils of
the party were constantly there. Adams states that
hardly a trace of these conversations was recorded, so
there is no evidence to throw light on these most impor-
tant party gatherings.^^ Gallatin himself wrote that he
had been very free in his dealings with prominent mem-
bers of the legislature, and it is evident that he kept a
close watch over all proceedings in Congress.^^ If there
was no one in that body ready to look after party inter-
ests, Gallatin was able to interfere personally, and in at
least two instances he prevented the passing of unde-
sirable bills. He wrote Jefferson that the chairman of a
certain committee had reported two bills, one to alter
the form of government of Michigan, "on principles so
opposed to those of our political institutions that I am at
35 ' ' South Carolina Federalists, ' ' Am. Eist. Eev., XIV, 787, ' ' Jefferson
lodges at Francis's hotel with a knot of Jacobins ..."
3« Adams, Gallatin, p. 302.
ZT Ihid., p. 346, October 13, 1806, Gallatin to Jefferson: "If . . . there
be any who believe that in my long and confidential intercourse with Repub-
lican members of Congress, that particularly in my free communication of
facts and opinions to Mr. Randolph, I have gone beyond what prudence
might have suggested, the occasion necessarily required, or my official situa-
tion strictly permitted," they would naturally criticise freely.
182 DEVELOPMENT OF LAWMAKING
a loss to guess how it could pass the House without ani-
madversion. ' ' The other proposed to give the governor
and judges authority to decide all land claims in the terri-
tory. ''Both passed the House; Nicholson had resigned;
Randolph attending to other objects; no man yet con-
sidering himself as obliged to watch over every proceed-
ing; in fact, nobody had attended to the business. I
found it necessary to interfere by speaking to members
of the Senate, and succeeded in having the government
bill postponed sine die, and the general principles of
the land bill rejected.'"^ As was the case with Hamilton,
Gallatin must have found that his official duties were
not the only matters to which he had to give his atten-
tion. The "course of legislative manoeuvres" was like-
wise a matter of concern to Jefferson's Secretary of the
As a matter of fact, an outline of Gallatin's work as
Secretary of the Treasury and first assistant in Congres-
sional business shows that Hamiltonian precedents were
generally followed. In the first place the hitherto uncon-
stitutional practice of reference was revived by the Re-
publicans. On February 21, 1803, a resolution was intro-
duced by a Republican member, to the effect that the
Secretary of the Treasury be directed to prepare and sub-
mit to Congress early in the next session a plan for lay-
ing ''new and more specific duties" on imports, so that
' ' the same shall, as near as may be, neither increase nor
diminish the present revenue arising to the United States
from imports. ' '^^ On March 3, the secretary was directed
to prepare and lay before Congress at the next session
a digest of laws relating to duties on imports and ton-
nage, together with recommendations regarding such
38 Gallatin, Writings, 1, 322, November 25, 1806. It was in the follow-
ing February that Jefferson wrote to Nicholas, urging him to take command
S9 Annals, 7 Cong. 2, 567-568.
THE JEFFERSONIAN REGIME 183
changes as might be necessary.*" The mere fact that
their first accession to power had been used primarily
for the purpose of breaking up a connection of almost
identically the same kind did not weigh heavily on the
Republican conscience. Hamilton was secretary in 1794,
while Gallatin held the position in 1803. Evidently leg-
islative methods were neither corrupt nor unconstitu-
tional in themselves. It was only their employment by
the ''aristocrats" that made them dangerous. More-
over the specially appointed guardians of popular rights
are of course freed from the rules that bind ordinary
men. What matter if the Republicans did take over the
whole legislative system of the Federalists, which they
had formerly condemned and annihilated? The chosen
representatives of the sovereign people could do no
Moreover the secretary attended committee meetings,
after the manner of his predecessor." Then he certainly
complained, and evidently protested vigorously when
Randolph was removed from the chairmanship of the
committee of ways and means.*" Besides attending com-
mittee meetings and attempting to interfere in the choice
of chairmen, Gallatin drafted at least one report for the
committee of foreign relations, which Campbell, the
chairman of the committee, presented to the House.*^
There was no Maclay to record in detail the practices of
the Republican secretary, but what evidence there is
indicates that in managing the legislature he was just
as active and as successful as Hamilton had been before
During this period of Republican supremacy the most
40 Annals, 7 Cong. 2, 644.
41 J. Q. Adams, Memoirs, I, 447.
42 Adams, Gallatin, p. 363.
43 /bid., p. 378; Gallatin, Writings, I, 435-446.
184 DEVELOPMENT OF LAWMAKING
noteworthy institution in Congress was not the standing
committee, although its importance was steadily grow-
ing, nor yet the speakership, but the extra-constitutional
party organization called the caucus. Through the cau-
cus the jarring, discordant elements of the party were
reconciled and made to work together, so that concerted
policies and harmonious action were no longer the exclu-
sive possessions of the Federalists. Inasmuch as consti-
tutional restrictions did not operate in the realm of party
machinery, president, cabinet, and legislature could all
come together on equal terms in the stronghold of a
secret meeting. The artificial barriers of a written con-
stitution prevented a perfectly frank and open connec-
tion between the branches of government, and forced
into existence instead an illegitimate union with all its
attendant evils. To the politician of course the scheme
seemed good, because it made possible the necessary co-
operation, while at the same time it effectually concealed
The device itself, well known in the colonies, had been
brought into Congress, as early as 1790, during the
period of Hamilton's supremacy. By 1797 the Senate
was so familiar with it that committee membership was
determined in secret party session.** Jefferson is
authority for the statement that ''during the XYZ Con-
gress, the Federal members held the largest caucus they
ever had, . . . and the question was proposed and de-
bated, whether they should declare war against France,
and determined in the negative. ' ' He also reported that
44 "South Carolina Federalists," Am. Hist. Bev., XIV, 789, May 29,
1797. The Senate distributed the parts of the President's speech to
several committees ; " by a previous arrangement, they have left out of
the commtees, every one of the minority to shew them that they have no
confidence in them and are afraid to trust them at this crisis: there is not
a man of the minority on any one committee. ' '
THE JEFFERSONIAN REGIME 185
in that caucus only five more votes were needed to bring
about a declaration of war."^
Perhaps the most noteworthy of all Federalist cau-
cuses were those held in 1801, during the exciting contest
for the presidency. Bayard, who assumed the lead after
the deadlock became serious, decided to vote for Jeffer-
son instead of Burr. He called a caucus, and informed
his colleagues of his determination. After the first out-
burst of indignation they seemed inclined to *'acquiese,"
and another caucus was arranged for, ** merely to agree
upon the mode of surrendering."*® After the election
was over Bayard wrote a vivid account of the whole pro-
ceeding to Hamilton. *'In the origin of the business I
had contrived to lay hold of all the doubtful votes in the
House, which enabled me, according to views which pre-
sented themselves, to protract or terminate the contro-
''This arrangement was easily made. . . . When the
experiment was fully made, and acknowledged upon all
hands to have completely ascertained that Burr was
resolved not to commit himself,*^ and that nothing re-
mained but to appoint a President by law, or leave the
government without one, I came out with the most ex-
plicit and determined declaration of voting for Jeffer-
son. You cannot well imagine the clamor and vehement
invectives to which I was subjected for some days. We
had several caucuses. All acknowledged that nothing
but desperate measures remained, which several were
disposed to adopt, and but few were willing openly to
disapprove. We broke up each time in confusion and
45 Jefferson, Anas, January 10, 13, 1800. These reports came to Jeffer-
son in rather roundabout fashion.
46 Bayard Papers, A. H. A. Beport, 1913, II, 127,
47 In a letter written during the controversy itself. Bayard wrote that
Burr ' ' was determined to come in as a Democrat. ..." Bayard Papers,
186 DEVELOPMENT OF LAWMAKING
discord, and the manner of the last ballot was arranged
but a few minutes before the ballot was given. Our
former harmony, however, has since been restored."*^
Maclay had been inclined to speak critically of this
device of the Federalists, but once in power the Repub-
licans unblushingly adopted it along with whatever else
in the Federalist system seemed worth taking. Just how
early the Republicans began to follow Federalist prece-
dent in this respect is not known definitely. Mr. Henry
Adams states that during the six years of Gallatin's
career in Congress there were only two *' meetings of his
party associates in Congress called to deliberate on their
political action." These two occasions were in 1796,
during the debate on the Jay Treaty, and in 1798, during
the discussion of the attitude of the French Directory."
This would indicate that the caucus was not regularly
used by the Jeffersonians. The party, however, was more
familiar with that bit of legislative machinery than Mr.
Adams' statement implies, and there were certainly
other Republican caucuses during that period. As a
matter of fact the leaders of the party lived at the same
hotel, so they might he said to have been in informal
48 Hamilton, WorJcs, VI, 523.
This custom of settling important questions in caucus was continued
by the Federalists after the election of 1800. Eegarding the repeal of
the Judiciary Act, Bayard wrote Hamilton that there would be a meeting
"to concert an uniform plan of acting or acquiescing before Congress
adjourns. ..." IMd., 539. See also Gibbs, Fed. Adm., I, 331, Goodrich
wrote that the Federalists had decided to "risque the consequences of
delay, and prolong the debates," in the hope that some pressure might be
brought to bear on the representatives by their constituents.
49 Adams, Gallatin, p, 214. Caucuses were held on those occasions.
Goodrich hints at united action on the part of the opposition at that time,
and implies that Republican action was the outcome of preconcert. Gibbs,
Fed. Adm., I, 331, 335. With reference to the threatened war with France,
Jefferson reports the device adopted by the Eepublicans to get their
resolutions before the House. The resolutions were referred to by a
Federalist paper as the "result of the united wisdom and deliberation of
the opposition party." Jefferson, Writings, VII, 224; Col. Cent., April 4,
THE JEFFERSONIAN REGIME 187
caucus most of the time.^" It was reported in 1796 that
the Republicans held a caucus to decide on a candidate
for the vice-presidency.^^ In, 1799 the Columbian Centi-
nel printed the following: "Among the extraordinaries
of the day, may be ranked the caucussing of the Jacobins
at Philadelphia, in favor of Mr. Rutledge, of South-
Carolina, as Speaker, in opposition to Mr. Sedgwick,
because the latter is a northern man."^- Then, while the
Federalists were holding their caucuses during the elec-
tion of 1800, their opponents were busy in the same
The Republicans certainly became familiar with the
caucus before the election of 1800, and from the seventh
Congress on they made regular use of it. The Federalist
newspapers of 1802 were constantly referring to Repub-
lican caucuses. ''The Democrats in Congress," ran an
item in the Washington Federalist, "are adopting of late
quite an economical plan of making laws. — All business
is to be settled in caucuses before it comes before the
House ; and the arguments or motives be given in news-
papers afterwards. The federal members are to be
treated as nullities. ' '^* The same paper charged that the
decision regarding important bills was not made in the
House, but in the caucus.^^ Bayard, a Federalist, speak-
ing during the debate on the repeal of the act establish-
ing the district courts, referred to the caucus, and was
called to order for so doing. That was in 1802, and was
50 ' ' South Carolina Federalists, ' ' Am. Hist. Eev., XIV, 787.
51 Ibid., 780.
52 Col. Cent., December 7, 1799.
^3 Wash. Fed., February 10, 1801; "It is said a Jeffersonian Caucus
met last Friday evening. For special reasons, the meeting was not held
in Washington but in Georgetown. — The Democratic Eepresentatives in
Congress, with their Genevan Director and his Subalterns, were generally
present. ' '
5ilhid., February 6, 1802.
65 Ibid., January 28, 1802.
188 DEVELOPMENT OF LAWMAKING
apparently the first mention of the institution in the
House.'^ It was charged that at these meetings either
Jefferson or Duane always presided."
The following breezy account is a good example of
Federalist comment on Eepublican affairs. ''At a cau-
cus held in the dancing assembly room, back of Stiles'
boarding house, New Jersey Avenue, on the night follow-
ing the 20th of January, in the year of grace 1802, but the
1st of pure democracy.
Johnny Randolph in the chair.
Mr. Elmendolph moved that there be a Secretary, and
nominated himself for the appointment." "Chairman.
Gentlemen, fellow servants of the people, our last caucus,
in which was determined the bill, for the diminution of
the army, was advanced to this night, to decide on the
bill for a naval armament against Tripoli ; and the ques-
tion is, shall it pass without amendments— and without
debate too, said Mr. Davis of Kentucky, with a sneer, and
putting on his hat, withdrew. This roused Mr. Claiborne,
who, flourishing his hand, holding his hat and stick, said,
Mr. Chairman, I am sorry that we agreed in our last
caucus to pass the Military bill, without saying anything
against it ; citizen Davis is very angry, and I myself think
it will never do ; we ought to be allowed to make speeches
against expense, all kinds of expense, no matter how we
vote, let our speeches be printed, and we can tell our
constituents the federalists carried the vote . . . and I
understood we had agreed so, for most of our side, talk
one side and vote t'other . . . here the caucus was inter-
rupted by the entrance of the attorney general, who de-
clared . . . that their great coats should suspend them-
selves before the windows, to prevent the prying eyes of
aristocracy from telling who were assembled; this was
58 Annals, 7 Cong. 1, 480.
57 Wash. Fed., February 21, 1802.
THE JEFFERSONIAN RElGIME 189
immediately done, but one window remaining unveiled,
after all the great coats were applied; John Smith of
New York proposed, that Col. Varnum should stand with
his face to that, which, from its broad shape and sable
hue, he believed would interrupt vision as well as a great
coat; but to avoid accident, he moved that Mr. Jones of
Philadelphia and Dr. Archer of Maryland should back
Perhaps the best description of the caucus as the real
legislature is that in the speech of Josiah Quincy, the
radical Federalist from Massachusetts. ''But, sir," he
said in speaking of the bill for the extra session of Con-
gress, ''with respect to this House, I confess I know not
how to express my opinion. To my mind, it is a political
non-descript. It acts, and reasons, and votes, and per-
forms all the operations of an animated being, and yet,
judging from my own perceptions, I cannot refrain from
concluding that all great political questions are settled
somewhere else than on this floor. ' ' The Speaker called
him to order, and Quincy went on: "If the Speaker
means that I have not a right to state facts, and leave the
people to make reflections upon them, I must appeal from
his decision. ' ' Quincy then proceeded to state facts which
proved his assertion. "The fact to which I allude hap-
pened on the day when the enforcing embargo law was
passed. On that day, before the House was called into
a Committee of the Whole upon the bill, I was informed
that it had been resolved somewhere, I know not where,
nor by whom, that the House should be called into Com-
mittee of the Whole immediately upon that bill — that it
was to be passed in one day through all the remaining
stages — that the bill was then actually engrossed, or
engrossing, and that after it was so passed, a bill was to
be proposed and passed for calling an extraordinary ses-
58 Wash. Fed., January 23, 1802.
190 DEVELOPMENT OF LAWMAKING
sion of Congress in May next. This was stated to me,
previous to the going into Committee of the Whole on
the enforcing embargo bill, as the course settled. Well —
what happened? Why, agreeably to the information I
had received, we were immediately called into a Com-
mittee of the Whole, on the bill. We did pass it, through
all the remaining stages at one session, notwithstanding
the multitude of its provisions, the greatness of the prin-
ciple and consequences it involved. So far my previous
information proved correct. It will also be recollected
that in the course of the nocturnal session on that bill,
the gentleman from Pennsylvania (Mr. Smilie) did state
it as his intention to bring forward a bill for a meeting
of Congress in May, and accordingly, the next day he
introduced the motion, which was the foundation of the
present bill. Thus again my previous information was
proved by the event accurate. ' '^'^
Several Republicans spoke in reply, not to contradict,
because contradiction of known facts is somewhat diffi-
cult, but to explain why they transacted business in that
way. One Williams, for instance, argued that the tactics
of the Federalists forced such a course upon the major-
ity. ''Gentlemen in the minority all went to dinner,
leaving one gentleman behind them to call for the yeas
and nays and make motions till they came back. . . .
When that course of proceeding was adopted, there was
a kind of instantaneous determination of the majority
of the House to take the question. "^° Instantaneous
determinations must have come frequently, and they
struck the majority with a most curious uniformity.
Some of the Federalists, such as Quincy and Pickering,
were extremely bitter in their denunciation of this
method, first introduced by their friends, and then used
59 Annals, 10 Cong, 2, 1143.
THE JEFFERSONIAN REGIME 191
so effectively by their opponents. Pickering was so
wrought up that he advocated secession. ''And must
we, with folded hands, wait the result? or timely think
of other protection? This is a delicate subject. The
principles of our revolution point to the remedy — a sepa-
ration. That this can be accomplished, and without spill-
ing one drop of blood, I have little doubt. One thing I
know, that the rapid progress of innovation, of corrup-
tion, force the idea upon many a reflecting mind. Indeed
we are not uneasy because 'unplaced': But we look with
dread on the ultimate issue; an issue not remote, unless
some new and extraordinary obstacle be opposed, and
that speedily. For paper constitutions are become as
clay in the hands of the potter. The people of the East
cannot reconcile their habits, views, and interests with
those of the South and West. The latter are beginning
to rule with a rod of iron. When not convenient to vio-
late the Constitution, it must be altered; and it will be
made to assume any shape as an instrument to crush the
If more democracy was injected into American govern-
ment by Jefferson and his followers, that fact could never
be deduced from the records of Congress. The House of
Representatives was just as much dependent upon the
executive as it had been at the height of Hamilton's
career. On the other hand there is evidence of develop-
ment in the opposite direction. In his eminently success-
ful attempt to overcome friction within Republican ranks,
Jefferson had really built up a highly centralized system.
The party following was drilled to act together in cau-
cus, where the individual member was induced to relin-
quish his cherished privilege of blocking the wheels of
action. But the caucus was only the rehearsal, so to
61 Pickering MSS. XIV, 93, January 29, 1804; cf. ibid., 106, and J. Q.
Adams, Memoirs, I, 465.
192 DEVELOPMENT OF LAWMAKING
speak, and there was always the possibility that in the
regular performance in Congress some unruly Eepub-
lican might cast off party trammels and vote as he
pleased. To guard against such a contingency Jefferson
made it a practice to keep a recognized leader in the
House, whose duty it was to see that members "voted as
was right." The infallibility of Jefferson in the politi-
cal field was like unto that of the pope in the spiritual,
and denial of his inspiration was heresy, punishable by
political death. Good Republicans such as John Ran-
dolph, for instance, who insisted upon the right of inde-
pendent judgment, were promptly read out of the party.
It seemed a far cry to democracy when the President
insisted upon doing the thinking for Congress and regu-
lating the actions of its members.
During all of his first term and for a greater part of
his second Jefferson succeeded in dominating the party
which he had helped to create. Caucus and Congres-
sional floor leader looked to him for advice and direction.
But the development of this very machinery made possi-
ble a radical change in the relationship between execu-
tive and legislature. There was nothing to prevent some
of the influential members of the House from getting con-
trol of the party, and through it of the whole administra-
tion. The House might at any time place one of its real
leaders in the Speaker's chair, and clothe him with all
the power formerly enjoyed by Jefferson's floor lead-
ers. When the party organization became powerful
enough to elect the president, as it practically did in
1808, the end of executive control was already in sight.
Jefferson brought order out of the chaos in his party
through an effective organization, but in so doing he
lost sight of the Republican ideal of the earlier period.
According to those original principles, the House of
Representatives should have been the most important
THE JEFFERSONIAN REGIME 193
factor in the government. By getting control of that
very party organization which threatened permanently
to eclipse such theories, Congressional leaders were able
to transfer the attributes of sovereignty from the presi-
dent to the House of Representatives. Madison's presi-
dency was the transitional period during which this read-
justment of the relations between the two branches of
the government was actually brought about.
MADISON AND CONGRESS
By his masterly success in overcoming factional dif-
ferences, Jefferson proved to the country that as a polit-
ical leader he was almost without a rival. Few presi-
dents have had a more disjointed, refractory party to
deal with, and none has a higher reputation for clever-
ness in management. For almost eight years he held his
forces together, and, displaying sometimes a stubborn
firmness, again a conciliatory spirit amounting almost
to weakness, he forced the adoption of the program of
Madison succeeded to Jefferson's office but not to his
ability. Theoretically he was the party chieftain, but
in that position he displayed lack of power and want of
political wisdom as unpleasantly pronounced and con-
spicuous as it was pathetic. Some of his difficulties were
due to his own temperament and personality, for he was
never meant to be a leader of men. But he was in large
measure the victim of circumstances. Jefferson had
made the Republican party, and as maker he ruled it.
The party in its turn made Madison president, and what
need was there to bow before the idol it created?^
Madison's real troubles began even before his inaugu-
ration. Worn out and discouraged because of growing
opposition, Jefferson laid down the burdens of office in
the winter of 1809. Early in January, the House broke
1 Madison 's troubles as a machine-made president are discussed at length
in a letter from Pickering to Cabot, March 19, 1810; Pickering MSS. XIV,
MADISON AND CONGRESS 195
away from executive control, and assumed for itself the
responsibility of deciding upon the wisdom of various
measures. For one thing, in spite of Gallatin's heated
objections, it passed a bill to fit out the navy.^ Less than
a month afterwards Congress struck another vigorous
blow at the administration by repealing Jefferson's
favorite measure, the Embargo, and with that the firmly
knit and intimate connection between executive and legis-
lature came to an abrupt end. Even in the caucus, where
the repeal was really carried, the Congressional major-
ity seemed determined to break completely with Repub-
lican custom. ''The Caucus at Washington, on Monday
evening," ran one account, "was rather a public than a
private meeting. The doors were not closed. Several
moderate republicans, and one federalist, attended. Mr.
Giles made an able speech, in a style compassionate and
conciliatory towards the eastern People. Messrs. Eppes
and J. G. Jackson abandoned the War System. It was
decided by 61 votes to 2 to REPEAL THE EMBARGO
on the 4th of March next. Messrs. Bassett and Taylor
were the dissentients. It was decided not to issue Letters
of Marque. The question of an Armed Commerce was
fairly left open for decision in the House. The Volun-
teer Army Bill was given up. A NON-INTERCOURSE
LAW is to be passed, to take effect at a distant day, if
another effort for Peace shall fail. An ARMY of Six-
teen Thousand Men is to be raised, and the Executive is
to be authorized to borrow TEN MILLIONS OF DOL-
The strength of the opposition was again emphasized
by the action of the Senate in the case of the non-inter-
course act. Senator Pickering had planned to speak
against it, but he was refused permission. He wrote that
2 Adams, Gallatin, pp. 385-387.
sSpooner's Vermont Journal, no. 1335, February 20, 1809, quoting from
the Freeman's Journal of Februaxy 10.
196 DEVELOPMENT OF LAWMAKING
"the Admn men, duly prepared in caucus were ready to
adopt it without discussion. I asked for an explanation
of the material parts of the bill and their necessary oper-
ation: but this was denied us. And when I desired a
postponement only till the next day ; and tho ' it was then
past four o'clock, this request was refused, and the bill
passed."* Although he attributed this measure to the
"administration," Pickering was clearly in error. The
measure was decided upon in an anti-administration cau-
cus, and all the other evidence shows that by this time the
insurgents had full control. The Federalists did not
realize that an important change was going on in the
government itself. Hitherto the initiative had been im-
parted by the president and his friends, but from this
time on until the "reign" of Andrew Jackson the guid-
ing power is to be found in other quarters.
For the time being the reins were seized by a small
group in the Senate, the commands of which, even in
matters relating to his own cabinet, Madison was uncere-
moniously compelled to obey. The president desired to
transfer Gallatin to the State department, but he was
forced to forego that plan, and to appoint instead a
worthless nonentity in the person of one Robert Smith.
The leaders of this hostile group were General Smith,
brother of the new Secretary of State, and Wilson Gary
Nicholas, their brother-in-law. In the face of the attacks
of this new triumvirate the administration succumbed,
and Madison could hardly have played a less important
part during those eight uncomfortable years if he had
remained in Virginia.^
Madison's difficulties in the winter of 1809 were only
a warning of more troubles to come. While it refused
to act in harmony with the administration, the eleventh
4 Pickering MSS. XIV, 230.
5 Adams, Gallatin, pp. 388-391. Contemporaneous account written by
John Quincy Adams.
MADISON AND CONGRESS 197
Congress was so devoid of talent that it could accomplish
nothing by itself. The characteristics of its two sessions
were unintelligent discussion and lack of positive action,
to which the Annals are a lasting and unpleasant memo-
rial. It had no policy, and the members rambled on
indefinitely about foreign relations in general and non-
intercourse in particular.
To be sure Madison still had Gallatin's assistance, but
the latter was persona non grata to Congress, so that
nothing could be accomplished through him. He drafted
the measure known as Macon's Bill number one, the
object of which was to exclude both French and British
vessels from American ports, but his personal enemies
defeated it in the Senate.®
After the first session had dragged on for nearly five
months, Madison wrote to Jefferson that: "Congs remain
in the unhinged state which has latterly marked their
proceedings ; with the exception only that a majority in
the H. of R. have stuck together so far as to pass a Bill
providing for a conditional repeal by either of the
Belligtsof their Edicts; . . . "*
Matters steadily went from bad to worse, and in the
second session Congress was able to strike a telling blow
at Gallatin. The bill for the recharter of the National
Bank was defeated in the Senate by the casting vote of
the vice president. Thus in the face of a threatened
crisis in foreign relations the Treasury was deprived of
the services of a very badly needed financial agent.^
The president's position was perfectly obvious to his
contemporaries. John Randolph of Roanoke, never hap-
pier than when a lively political fracas was in progress,
wrote: **The truth seems to be that he (Madison) is
President de jure only. Who exercises the office de facto
6 Adams, Gallatin, pp. 413, 415.
7 Madison, Writings, VIII, 95, April 23, 1810.
8 Adams, Gallatin, pp. 426-429, February 20, 1811.
198 DEVELOPMENT OF LAWMAKING
I know not, but it seems agreed on all hands that 'there
is something behind the throne greater than the throne
itself ..." Then, concerning Gallatin, he continued :
**If his principal will not support him by his influence
against the cabal in the ministry itself, as well as out of
it, ' ' he ought to resign. ' * Our Cabinet presents a novel
spectacle in the political world; divided against itself,
and the most deadly animosities raging between its
principal members. ..." Three days later he thus
summarized his observations: "The Administration are
now in fact aground at the pitch of high tide, and a
spring tide too. Nothing, then, remains but to lighten
the ship, which a dead calm has hitherto kept from going
to pieces. If the cabal succeed in their present projects,
and I see nothing but promptitude and decision that can
prevent it, the nation is undone. ' "
Placed in such an intolerable situation, Gallatin could
do nothing less than offer his resignation. In a masterly
analysis of the difficulties under which he and his chief
had labored, he set forth his reasons for wishing to with-
draw. In such a government as that of the United States,
he wrote, '4t appears to me that not only capacity and
talents in the Administration, but also a perfect heartfelt
cordiality amongst its members, are essentially neces-
sary to command the public confidence and to produce the
requisite union of views and action between the several
branches of government. In at least one of these points
your present Administration is defective. . . . New sub-
divisions and personal factions, equally hostile to your-
self and to the general welfare, daily acquire additional
strength. Measures of vital importance have been and
are defeated; every operation, even of the most simple
and ordinary nature, is prevented or impeded; the em-
8 Adams, Gallatin, pp. 430, 431, Eandolph to Nicholson, February 14, 17,
MADISON AND CONGRESS 199
barrassments of government, great as from foreign
causes they already are, are unnecessarily increased;
public confidence in the public councils and in the Execu-
tive is impaired, and every day seems to increase every
one of these evils. Such a state of things cannot last; a
radical and speedy remedy has become absolutely neces-
sary. ... I clearly perceive that my continuing a mem-
ber of the present Administration is no longer of any
public utility, invigorates the opposition against your-
self. ..." Consequently he tendered his resignation.^"
Madison, however, did not wish to part with the ablest
Republican in office, and Gallatin held his position until
May, 1813, when he welcomed the chance to go abroad
as one of the peace commissioners."
The twelfth Congress was the very opposite of its
inactive, blundering, leaderless predecessor. In place of
those mediocrities who could do nothing better than pre-
vent the enactment of Gallatin's proposals, there ap-
peared that famous group of impulsive, energetic young
Americans of the west and south, the ''war hawks" of
1812. Clay, the new Speaker, with Calhoun and Lowndes,
would give tone to any assembly. Gallatin, who tried at
first to direct the new Congress as he had tried to direct
the old,^^ failed again, but for a very different reason.
With the eleventh Congress he could do nothing, because
it was impossible to galvanize a dead mass into life. In
10 Gallatin, Writings, I, 495-496, Gallatin to Madison, March, 1811.
11 Gallatin did not always agree with Madison. Monroe, in 1820, referred
to Gallatin's report concerning the condition of the treasury at the begin-
ning of the War of 1812, the tendency of which was "exceedingly unfavor-
able to the measures then contemplated by Mr. Madison." J. Q. Adams,
Memoirs, IV, 500-501.
12 Pickering MSS. XXX, 17, February 18, 1812. "... indeed such has
been the confusion and division among the party, that no one has hitherto
discovered sufficient influence to control any great or general question:
Smilie who is most notoriously a creature of Gallatin the arch Jugler of
administration has talked & scolded again & again but in vain. ' ' Eeed
200 DEVELOPMENT OF LAWMAKING
the twelfth there were able, influential leaders in the
House, with a policy of their own. To be sure it took
them a little time to get control, but when they did they
compelled the administration to follow their lead.
Disgusted with what seemed to them the unpatriotic
yielding to European belligerents, these militant nation-
alists determined to take their stand on a policy of
aggressive action. In former years, the president had
been able to direct the foreign policy of the government,
and as party leader he could force the House to sanction
his proposed measures. In 1812, instead of determining
what course should be followed, Madison, a notorious
pacifist, found it expedient or necessary to acquiesce in
the war policy of the majority in Congress. On May 11,
Taggart wrote Pickering that there was no doubt of the
determination of the leaders to declare war, and that
nothing would deter them except inability to make it.
A ''mere passive war," he reported, might meet with
the approval of Jefferson and Madison, but "it will not
meet with the views of the committee of foreign rela-
tions and others to whose implicit direction Madison has
resigned up himself, because, as I believe, he could in
no other way secure their support in his reelection.""
Madison 's consent to war was such a puzzle to his oppo-
nents that they tried to find some reasonable explanation
for it, and this opinion expressed by Taggart was widely
circulated and generally believed by the Federalists.
According to report, a committee, including Clay and
Grundy, had called on Madison, and threatened to pre-
vent his reelection if he would not recommend war;
rather than lose a second term, the president obeyed.
What the real facts of the case are no one knows. It is
perfectly clear that if the Congressional caucus had re-
fused to nominate Madison, his chances of reelection
13 Pickering MSS. XXX, 41, May 11, 1812.
MADISON AND CONGRESS 201
would have been almost hopeless. Certainly in 1812 the
nomination was delayed for some reason. It was not
until May 18 that the nominating caucus was held; in
1804 it met on February 24, in 1808 on January 23, and
in 1816 on March 12. Foster, the British ambassador at
Washington, asserted that the leaders waited until they
felt sure of Madison's attitude before they honored him
with what was practically the gift of a second term.
''The reason why there has been no nomination made in
caucus yet, by the Democratic members, of Mr. Madison
as candidate for the Presidency is, as I am assured in
confidence, because the war party have suspected him
not to have been serious in his late hostile measures, and
wish previously to ascertain his real sentiments.""
The ''war hawks" might drag the unwilling Madison
along in their war policy, but for several months they
had some diflficulty in holding their followers together in
Congress. ^^ Besides the trouble caused by the Smith-
Nicholas faction, referred to above, there was other lack
of harmony within Republican ranks during the early
part of the war. In May, 1813, Webster wrote that "At
present, rely upon it, there is great diversity & schism,
among the party — how much of this can be remedied, by
caucussing and drilling, it is not easy to say." Again,
" If we only had three or four more Senators, we should
see Madison kick the beam. " " Poor Madison ! " he wrote
a few days later, ' ' I doubt whether he has a night 's sleep
these three weeks — ." Still more specifically, on June
19, he wrote: "The fact is, the Administration are, for
14 Foster to Castlereagh, May 3, 1812, quoted in Adams, Hist, of United
States, VI, 213. This is the most direct evidence there is on this interesting
point. The matter was referred to in some of Pickering's correspondence,
but he gives nothing but hearsay evidence. Pickering MSS. XV, 19, 24, 27.
On January 5, 1813, Josiah Quincy charged in Congress that Madison
would not have been reelected if he had not promised to support the war
policy. Annals, 12 Cong. 2, 565.
15 Adams, Hist, of United States, VI, 113-219.
202 DEVELOPMENT OF LAWMAKING
the moment, confounded — They are hard pushed in our
house — ^much harder in the Senate — . . . Madison has
been several days quite sick . . . the Taxes go heavily —
I fear they will not go at all — They cannot raise a Cau-
cus, as yet, even to agree what they will do — They are in
a sad pickle, who cares T"^
Then, with reference to the proposed plan for raising
revenue, Hanson said that system as ' ' digested, method-
ized, altered, and submitted to the House, . . . was the
result of a compromise; that a majority could not be
carried along to support it, but for the modification em-
bracing these reservations; and that a majority could
not have been induced to vote for the taxes, but upon the
express condition and expectation that they would never
take effect;" Hanson referred to the caucus, held at the
Capitol, which resulted in nothing, because there was
''much dissention and wrangling," and which finally
broke up in confusion."
In January, 1814, Potter of Rhode Island taunted the
Republicans with their inability to work together. Ac-
cording to his understanding it was ''not only the right,
but the duty of the majority to govern — they ought to be
true to themselves and just to the nation — to lay down
their course and pursue it . . . without turning to the
right or left, as on them rests all the responsibility."
They control the army and the treasury, "and if they
have not ability to devise a system of measures, stability
to persevere in, and energy sufficient to execute them,
they ought not to find fault with the minority." He
asserted that the administration had been impeded by
"their own divisions and jealousies, as well in the Cabi-
net as in the Senate and House of Representatives. . . .
if the President of the United States, with his means of
16 Webster, Letters, pp. 35, 39, 42-43 (Van Tyne ed.).
■^T Annals, 13 Cong. 1, 461.
MADISON AND CONGRESS 203
information, could not have selected from his political
and personal friends four gentlemen having the same
general and political interest with himself that could
agree with him in his measures," and if the war party
in the Senate and House could not cooperate, ''how
could they expect the minority to agree with themf"^^
The foregoing statements make it clear that the Repub-
lican leaders in Congress were not able immediately to
subject their followers to the strict discipline of the Jef-
fersonian regime. Executive influence had been thrown
off, but the House had not yet acquired enough expe-
rience in going alone to make a good showing. The
Jeffersonian organization was still in existence, but the
new managers had not learned how to operate it to the
best advantage. According to Webster, all really impor-
tant business was as usual transacted outside the House.
"In our political capacity," he wrote, "we, that is, the
House of Representatives, have done little or nothing.
The time for us to be put on the stage and moved by the
wires, has not yet come. I suppose the 'show' is now in
preparation, and at the proper time the farce of legis-
lating will be exhibited. I do not mean to say that the
'projects' will not be opposed, as far as may be, nor is it
certain that all the Democrats will ' hang together, ' on the
great subject of taxes ; but before any thing is attempted
to be done here, it must be arranged elsewhere. "^^
It was not until 1814 that the Clay contingent obtained
such complete control of the administration that this
friction practically disappeared. Even Jefferson himself
could have done no better in overcoming disintegrating
forces within the party. With reference to the restric-
tions on commerce in force during the war, Webster said
that the system had been given extensive support, "be-
18 Annals, 13 Cong. 2, 1101, January 21, 1814.
19 Webster, Private Correspondence, I, 233, June 4, 1813.
204 DEVELOPMENT OF LAWMAKING
cause it was attended with a severe and efficacious dis-
cipline, by which those who went astray were to be
brought to repentance. No Saint in the Calendar ever
had a set of followers less at liberty, or less disposed to
indulge troublesome inquiry, than some, at least, of those
on whom the system depended for support."^" A letter
to the Columbian Centinel brings out the same idea.
After reporting that the repeal was not opposed by any-
one of importance, the writer continued: ''The Man-
agers of the Nation held their caucus ; where the repeal
having been decreed, the President, Senate, and House,
like the old French Parliament, had nothing to do but to
enregister and execute the edict. So moves our State
machine. ' '"^
In the next session King of Massachusetts delivered a
tirade against the Republican system of governmental
management. ''This consolidation of the different de-
partments of Government, I must observe to you, sir, is
one of the high crimes which this Administration had
committed against the Constitution and the American
people. For party and corrupt purposes you have
broken down the barriers interposed by the Constitution,
for the safety of the people, between the several depart-
ments of power, whereby this Administration, including
the majorities in both Houses of Congress, have become
one unleavened lump of democracy and oppression. Not
content with the Constitution, as you violently tore it
from Washington and its other friends ; not content with
creeping under it, leaping over it, winding round it — now,
sword in hand, attempting to pierce through it ; you have
so altered it, changed it, and mangled it, to suit your
party views and purposes — to perpetuate your power
and misrule — that the people no longer know or acknowl-
20 Annals, 13 Cong. 2, 1966, April 6, 1814.
21 Col. Cent., April 20, 1814, letter from Washington, dated April 13.
MADISON AND CONGEESS 205
edge it ; no longer find under it protection for their prop-
erty or safety for their lives. "^^
One of the striking characteristics of the foregoing
quotations is the radical change of tone in the comments
on Congress. Before 1813, the burden of the reports
from all quarters is the lack of harmony within the ranks
of the Republicans themselves. Their weakness was so
evident that it furnished the Federalists ample grounds
for ridicule. By June, 1813, Webster's correspondence
was revealing more respect for the ability of his politi-
cal opponents, and ten months later he could speak dog-
matically of the ''severe and efficacious discipline" by
means of which the Republicans were achieving marked
Concrete evidence of the thoroughness of this inner
transformation of Congress can be found in the quality
and quantity of the legislative output in 1816 and 1817.
After declaring war, the Republicans seemed to have no
carefully made plans or policies, and for a time the rec-
ords exhibit almost nothing except the vacillations of the
party in power. After 1817 Congress again became an
active, lawmaking body, as it had been before Jefferson's
retirement, and by the end of Madison's second term it
had three pieces of constructive legislation to its credit :
the Second Bank, the tariff of 1816, and the bill for inter-
It is not surprising that the Federalist looked upon
this reestablishment of Republican prestige and power
as a restoration of the complete Jeffersonian system.
Externally perhaps the Republican organization was
identical with that of former days. Party measures were
not allowed to come before the House until they had
been thoroughly discussed in caucus, and after their
appearance the faithful were careful to follow party
22 Annals, 13 Cong, 3, 731, December 3, 1814.
206 DEVELOPMENT OF LAWMAKING
mandates in their votes. To the Federalists it made little
difference whether a measure originated with the execu-
tive or with Congressional chieftains ; in either case they
were deprived of all influence in shaping the policy of
Federalist opinion to the contrary notwithstanding, it
was virtually a new Congress, and a new system, not a
reincarnation of the old, that was operating so effectively
at the end of Madison's second term. The Republican
organization had undergone a genuine transformation.
In 1807 the president had furnished the initiative, and
had been responsible for the more important measures
introduced in Congress. In 1814 leadership was the
prerogative, not of the president, but of prominent mem-
bers of the House of Representatives. A readjustment
had taken place within the party caucus, the result of
which was a transfer of the balance of power from the
president to Congress.
This fact is revealed in the legislation carried through
after the war. The various measures referred to, such
as the Second Bank, the protective tariff, and Calhoun's
bonus bill, would never have been recommended by a
Republican of the old school such as Madison, acting on
his own responsibility. They were all nationalistic in
tone, and they represented the spirit of the younger
element in the House of Representatives. During the
interval between the end of the war and his own retire-
ment, for some reason Madison felt that it was desirable
to agree with Congress, possibly because he found it
easiest to follow the line of least resistance, or possibly
because of the approaching presidential election. He
was certainly not opposed to Monroe's candidacy. The
latter 's success, however, depended upon the support of
the Congressional caucus, and the president who alien-
ated his party could not hope for influence in the choice
MADISON AND CONGRESS 207
of his successor. Until that important question was
settled Madison stayed with his party, in spite of its
strikingly nationalistic trend. After Monroe was elected,
and after his own term was to all intents over, Madison
mustered up courage enough to assert himself. The
internal improvements bill was laid before him to sign.
With nothing more to hope for or fear from Congress,
the president went back to his original party principles
and vetoed the bill. It is very significant that he vetoed
nothing else, and that only on the third of March, 1817.
After the buoyant Clay and his associates got control
of the Republican party organization, they were able to
impose their views on the policy of the nation through
the medium of the House of Representatives. Their
activities naturally brought that body forward, and gave
it a more conspicuous place in the scheme of government
than it had ever enjoyed before. This increasing promi-
nence carried with it heavier responsibilities, and made
necessary a more effective organization. Earlier execu-
tives had so dominated Congress that it was not required
to provide means for running itself. During this inter-
val of executive weakness and Congressional strength an
internal structure was evolved which would enable the
House to perform its more complicated duties.
One significant manifestation of this changed order
was to be observed in the marked increase in the power
and prestige of the presiding officer of the House ; under
Henry Clay the speakership became practically a new
office. Hitherto members who had held that position
were chairmen rather than directors of the majority
party, and during Jefferson's administration the Speaker
was subordinate in actual importance to the floor leader.
The president's personal representative had guided the
deliberations of the House, and when necessary saw that
the dictates of the Commander-in-Chief were obeyed. A
208 DEVELOPMENT OF LAWMAKING
weak president could not expect such unconditional sub-
mission, and apparently Madison had no personal agent
in the House. Clay, however, was both Speaker and
leader of the majority party, something that none of his
predecessors had ever been.
This development of the speakership was accompanied
by, if it was not actually responsible for, another change
of almost equal importance. Under the Clay regime the
standing committee system was firmly established, and
it was through these subdivisions that the popular
Speaker was able to impress the stamp of his theories on
legislation. Thus by 1825, so far as its organization was
concerned, the House of Representatives had assumed its
Note. On January 5, 1813, Josiah Quincy, a radical Federalist, deliv-
ered a speech in the House, in which he attempted to describe the striking
features of the Republican system of government. His breezy words have
attracted more or less attention, and because of that they may be worth
quoting in part. It should be carefully noted, however, that his statements
hold good only for Jefferson's two terms. Like other Federalists he failed
to realize the change which followed Madison's election. At the time he
was speaking it was not the cabinet, but the Clay following that was the
determining factor in legislation.
"It is a curious fact," he said, "but no less true than curious, that
for these twelve years past the whole affairs of this country have been
managed, and its fortunes reversed, under the influence of a Cabinet little
less than despotic, composed, to all efficient purposes, of two Virginians
and a foreigner. ... I refer to these circumstances as general and
undoubted facts. ..."
"I might have said, perhaps with more strict propriety, that it was a
Cabinet composed of three Virginians and a foreigner; because once in
the course of twelve years there has been a change of one of the characters.
But, sir, that change was notoriously a matter of form than substance.
As it respects the Cabinet, the principles continued the same; the interests
the same ; the objects at which it aimed, the same. ' '
"I said that this Cabinet had been during these twelve years little less
than despotic. This fact also is notorious. During the whole period the
measures distinctly recommended have been adopted by the two Houses of
Congress, with as much uniformity and with as little modification, too, as
the measures of the British Ministry have been adopted during the same
period by the British Parliament. The connexion (sic) between Cabinet
Councils and Parliamentary acts is just as intimate in the one country as
in the other."
MADISON AND CONGRESS 209
"I said that these three men constituted to all efficient purposes, the
whole Cabinet. This also is notorious. It is true that during this period
other individuals have been called into the Cabinet. But they were all of
them comparatively minor men, such as had no great weight, either of
personal talents or of personal influence, to support them. They were
kept as instruments of the master spirits. And when they failed to answer
the purpose, or became restive, they were sacrificed or provided for. The
shades were made to play upon the curtain. They entered. They bowed
to the audience. They did what they were bidden. They said what was
set down for them. When those who pulled the wires saw fit, they passed
away. No man knew why they entered. No man knew why they departed.
No man could tell whence they came. No man asked whither they were
gone. ' '
' ' From this uniform composition of the Cabinet, it is obvious that the
project of the master spirits was that of essential influence within the
Cabinet. ' ' He then charged that the ' ' leading influences want not asso-
ciates, but instruments, ' ' therefore they filled the Cabinet with mediocrities,
and the civil service with politicians.
' ' And further, it is now as distinctly known, and familiarly talked about
in this city and vicinity, who is the destined successor of the present Presi-
dent, after the expiration of his ensuing term. ..." One main object
of the cabinet is to secure the succession for themselves and their friends.
' ' This is the point on which the purposes of the Cabinet, for these three
years past, have been brought to bear — that James the First should be
made to continue four years longer. And this is the point on which the
projects of the Cabinet will be brought to bear for three years to come —
that James the Second shaU be made to succeed, according to the funda-
mental rescript of the Monticellian dynasty. ' ' Annals, 12 Cong. 2, 562-567.
THE GEOWTH OF THE STANDING COMMITTEE
The foregoing outline of Madison's relations with
Congress brings out the conditions amidst which the
standing committee system came into prominence. The
old legislative methods which had worked so well under
the successful and watchful supervision of Hamilton and
Jefferson had broken down in 1809. During the next
two years, as it happened, there was no one in the admin-
istration or in Congress able to bring about a restoration
of order. In 1811 and thereafter for several years, some
of the ablest men in public life were to be found in the
House of Representatives. The disorder and confusion
of the eleventh Congress was a challenge to their aggres-
sive spirits, and they were ready enough to take up the
responsibilities involved in working out and directing
the national policy. For means to be used in the attain-
ment of their ends, they employed the ruins of the Jeffer-
sonian machine, formidable enough in its day, but sadly
in need of repair. For a few years they worked along
with nothing better, and while they accomplished some-
thing, they were not able completely to eliminate fric-
tion and waste. By 1816 the House had accustomed
itself to the extensive use of standing committees, and
all accounts of that time agree that legislation progressed
as smoothly as it had ever done in the best days of Hamil-
ton or Jefferson. "With the Federalists complaining
bitterly of the effectiveness of the new system, it is evi-
STANDING COMMITTEE SYSTEM 211
dent that Clay, the brilliant young Speaker, had solved
In the early days, far from being the most striking
characteristic of the House, as it is to-day, the standing
committee was looked upon with distrust, and in Repub-
lican ranks it encountered no inconsiderable opposition.
The first standing committee of ways and means had
been dropped by the Federalists, not because they dis-
approved of it in principle, but merely because it did not
fit in with their scheme of government. As far as they
were concerned the Secretary of the Treasury was the
only agent needed in the transaction of financial busi-
ness ; from the point of view of real efiiciency, Hamilton
certainly was superior to any Congressional committee.
To some of the Republicans, on the other hand, stand-
ing committees were a positive evil, chiefly because they
were not authorized by the Constitution. They asserted
that when that document conferred certain powers and
duties upon the House of Representatives, it meant not
a single member, nor a group of individuals, but the
House itself, as an entity. It left the members no choice
in the matter, and it allowed them no discretion to de-
cide whether or not they might select a few of their
number to act for them, as agents in the performance
of such obligations. In the second Congress, Livermore
of New Hampshire even went so far as to oppose the
appointment of a standing committee of elections, on
the ground that jurisdiction in contested elections had
been given to the House itself. This duty, he argued,
could no more be transferred to any other body than the
power of legislation. In spite of his spirited opposition
a standing committee was appointed, and either from a
sense of humor, or from a desire to defeat the purpose
212 DEVELOPMENT OF LAWMAKING
of the appointment, the Speaker made Livermore its
One of the most outspoken advocates of this kind of
strict construction was Page of Virginia, who consist-
ently opposed the reference of any important measures
to committees. In the third Congress, when the Repub-
licans proposed to appoint a select committee to attend
to certain details of the financial work of the House,
Page spoke vigorously against the appointment. Plans
for raising revenue must originate in the House, not in
a committee, he argued, and much as he had objected
to the reference of such work to Hamilton, he was still
less in favor of turning it over to a committee. The
report of a committee would carry even more weight
than the report of a secretary, and it would be more diffi-
cult to get rid of its recommendations. He did not wish
to see the House relinquish any part of its constitutional
Two years later, in the course of a debate on a pro-
posal to restrict the carrying trade of foreign vessels,
Page tried to prevent reference of the subject either to
the committee of commerce and manufactures, or to the
committee of ways and means. Instead he advocated
the time-honored practice of discussion in committee of
the whole. He thought every subject should come before
the House ''unaccompanied with the opinions of a select
committee, or of any individual whatever." He was
opposed to "having public measures smuggled into the
House, no one could tell how.'"
This fear of committees was not confined to the early
years of Congress, when opposition might be accounted
for on the ground that the device was unfamiliar. In
1 Annals, 2 Cong. 1, 144-145.
2 Ibid., 3 Cong. 1, 532.
3 IMd., 4 Cong. 1, 248. The question was referred to the committee of
STANDING COMMITTEE SYSTEM 213
1805, when the House had had time enough to become
fairly well acquainted with the system, objections were
still occasionally heard. The committee on rules in that
year recommended the creation of a standing committee
on public lands. Bedinger voted against the proposal,
because he feared that a ** standing committee, vested
with the entire business connected with the public lands,
should gain such an ascendency over the sentiments and
decisions of the House, by the confidence reposed in them,
as to impair the salutary vigilance with which it became
every member to attend to so interesting a subject."*
After 1801 the Federalists criticised the Republicans
because of their reliance upon committees, but their
objections were based on the fact that they were a Ee-
publican device, rather than to any really serious feel-
ing that the system was intrinsically wrong. The fol-
lowing quotation serves as a good illustration of these
Federalist comments. This particular writer alleged
that the Republicans were constantly trying to increase
their power as a party, ''and to weaken and embarrass
all the regular departments and authorities of the gov-
ernment that might obstruct their designs. More than
seven years ago, they tried to shut the doors of Con-
gress to Reports from the Treasury Department. They
tried to put all the business into the hands of Committees.
They endeavored to make the House the Supreme Treaty
making power, and to reduce the President to a cypher.
The House, too, by going on to appropriate every item
of the public expenditures down to the details of fifty
cents, would engross the whole executive business, and
as it was impossible the House could do it, the Com-
mittees must, and the heads of parties would govern and
manage the committees."^ As time went on most of
4 Annals, 9 Cong. 1, 286.
5 Washington Federalist, January 14, 1802.
214 DEVELOPMENT OF LAWMAKING
these objections disappeared, and standing committees
were taken as a matter of course.
The growth of the standing committee system, together
with certain important changes in procedure which nat-
urally accompanied the development, went on slowly
after 1794. The several steps in the process can be
traced in the journals, and in the debates, but the rules
do not serve as a safe guide. Customs and practices
were very frequently established in the House long
before they were accorded formal recognition. For
instance, the committee of ways and means had been in
regular use for seven years, and the committee of for-
eign relations for over twenty, before they were added
to the list of committees provided for by rule.
The fact that standing committees had been constantly
in use for years in most of the state legislatures did not
seem to have any marked influence on Congressional
procedure. The committee of elections, regularly ap-
pointed after the first Congress, was hardly a legisla-
tive committee in the sense that it played any part in
the transaction of routine business. The first addition
to this list of one was made in 1794, by the creation of
the committee of claims.® In the first session of the
fourth Congress the revised rules provided for the
appointment of the two committees mentioned above, and
for two others, one on revisal and unfinished business,
the duty of which was to lay before Congress a list of
temporary laws in need of renewal, and also a list of
matters left over from the previous session, and the
other on commerce and manufactures.^ A week later
Gallatin moved the appointment of a standing committee
of ways and means, which became to all intents and pur-
poses one of the regular committees, although no provi-
6 Annals, 3 Cong. 2, 879.
ilbid., 4 Cong. 1, 140, 141, 143.
STANDING COMMITTEE SYSTEM 215
sion was made for it in the rules until 1802/ In 1799
and regularly thereafter there was appointed a com-
mittee on post offices and post roads, although there is
no mention of it in the rules until 1808.^ A committee
on accounts was established in 1803, one on public lands
in 1805, and one on the District of Columbia in 1808.
These nine were all provided for by rule when Clay
became Speaker in 1811."
This formal list of nine, however, does not show all
the standing committees regularly used in the House
during the twelfth Congress. By this time the presi-
dent's annual message had become standardized to the
extent that certain stock subjects, so to speak, were
always treated at greater or less length therein. For
example, in his speech to Congress in 1797 President
Adams dealt with foreign relations, Indian affairs, and
the general subject of defense. In the House these
matters were referred to so-called select committees,
although as a matter of fact they remained in existence
throughout the session, and in every respect conformed
to the definition of standing committees." As time went
on these committees on foreign affairs, Indian affairs,
the army, and the navy became just as important as any
of those provided for in the rules. In the spring of 1812,
the committee of foreign relations did not exist, accord-
ing to the rules, yet in influence it was fully the equal of
the committee of ways and means.^^ In 1815 an attempt
was made to bring the rules into harmony with actual
8 Annals, 4 Cong. 1, 159.
9 The first committee on post offices and post roads was appointed in
1796. There was none in the fifth Congress, but beginning with the sixth
Congress it was regularly appointed. Annals, 4 Cong. 2, 1598; ibid., 6
Cong. 1, 198.
10 Ibid., 12 Cong. 1, 332-334.
11 Ibid., 5 Cong. 2, 653-655.
12 For other examples of these appointments, see Annals, 10 Cong. 1,
795, 12 Cong. 1, 334.
216 DEVELOPMENT OF LAWMAKING
practice by adding to the formal list six of these com-
mittees on the president's message/^ For some un-
known reason the change was not made, although the
committees themselves were still regularly appointed
and constantly used. In 1822 the committees on Indian
affairs, foreign affairs, military affairs, and naval affairs
were formally added."
In the meantime other committees were created, so
that in 1825, when Clay's career in the House came to
an end, there were twenty-five in all. The new ones,
in order of appointment were : judiciary (1813) ; pensions
and Revolutionary claims (1813); public expenditures
(1814) ; private land claims (1816) ; six separate audit-
ing committees on expenditures respectively in the State,
Treasury, War, Navy, and Post Office departments, and
on public buildings (1816) ; manufactures (1819) ; agri-
culture (1820). The committee on manufactures was an
offshoot of the old committee of commerce and manu-
facture. Five different attempts had been made to divide
that committee, and in 1819 the proposal was carried."
The general cause of this development is evidently to
be found in the efforts of Clay and his friends to take
control of the government; the particular reason was a
steady increase in the amount of routine work in Con-
gress. A large proportion of this business related to
clearly defined subjects, and it was natural to classify
this, and to concentrate as much of it as possible in the
hands of a few committees. That the committee form of
13 Annals, 14 Cong. 1, 380-381, 385. Wilde submitted the resolution to
add the six following committees to the list in the rules: military affairs;
naval affairs; foreign affairs; militia; roads and canals; ordnance; forti-
fications, arsenals, etc. The resolution was referred to the committee
appointed to revise the rules, but nothing more was heard of it.
14 The rule providing for the change was adopted in the first session
of the 17th Congress, but the first appointments under it were not made
until December 3, 1822. Annals, 17 Cong. 2, 329.
15 Ibid., 11 Cong. 1, 230; 11 Cong. 2, 690, 717; 13 Cong. 3, 304;
14 Cong. 1, 381-382; 16 Cong. 1, 708-710.
STANDING COMMITTEE SYSTEM 217
organization seems to be the natural one for such bodies
is shown by the early — as well as the more recent — his-
tory of the House of Commons, and of the various colo-
nial and state legislatures. The House of Representa-
tives was not obliged to organize itself for defense
against an aggressive executive, because the source of
authority of both branches of the government was the
same. Nor was it compelled to assume executive func-
tions, because they were attended to by departments sub-
ject to the control of Congress. Moreover there was no
real need for a single important committee, such as the
committee on public bills in North Carolina, to give unity
and definite direction to legislation. That kind of work
was being done in the caucus, a body well fitted for the
performance of such duties, because the executive could
take part in its deliberations. What was needed was a
more systematic method of transacting business, and
the standing committee was a logical solution of the
These general statements are borne out by the orders
given to new committees at the time of their first appoint-
ment. According to the regular formula in which their
duties were outlined, the committees were charged *Ho
take into consideration all such petitions, and matters or
things, respecting" commerce or post offices or what
not.^® If more particular directions were necessary they
were given. The committee of accounts for example was
instructed to ''superintend and control the expenditure
of the contingent fund of the House of Representatives,
and to admit and settle all accounts which may be
In the case of the committee on the District of Colum-
■^^Ajinals, 4 Cong. 1, 141; 9 Cong. 1, 290; 10 Cong. 1, 2127; 11 Cong. 1,
230; 13 Cong. 1, 123; 13 Cong. 2, 796; 14 Cong. 1, 1451.
17 Ibid., 8 Cong. 1, 790. This statement shows that the committee was
not a committee of appropriations in any sense of the word.
218 DEVELOPMENT OF LAWMAKING
bia it was urged that the purpose of the appointment
was to ''simplify the business relating to the district."
Questions of great national concern always had prior
claim in Congress, and in order to guarantee proper
attention to the needs of the District, its affairs were
placed in the hands of a standing committee/*
In urging the creation of a separate committee of
manufactures Sawyer argued that Congress ought to
have "employed on the subject of manufactures the un-
divided energies of the best talents of the House; he
hoped that all the rays of patriotism and genius in the
House would be directed to this subject as to a focal
point at which they should all converge." Others who
spoke in favor of the same measure emphasized the
point that the subject of manufactures was so important
that it might well occupy all the time of a separate com-
mittee.^^ The growing interest in the protective prin-
ciple outside of Congress, and the steadily increasing
amount of legislative business in the way of petitions
and bills concerning it created the demand for this par-
Although Clay is generally given credit for the estab-
lishment of the modern standing committee system, he
was more interested in changes in procedure than in
additions to the mere number of committees. In fact,
an analysis of the course of this growth shows that of
the twelve new ones created during the interval from
1811 to 1825, seven were merely auditing committees, and
one was the outgrowth of an old committee. Moreover
Clay was Speaker in 1815, when the attempt failed to
add to the rules those six committees on the president's
message. It may or may not be significant that Bar-
bour, and not Clay, was Speaker in 1822, when four of
18 Annals, 10 Cong. 1, 1486-1487.
i^lbid., 11 Cong. 2, 690; 14 Cong. 1, 381; 16 Cong. 1, 708.
STANDING COMMITTEE SYSTEM 219
them were finally so added. Again, the movement to
create a separate committee of manufactures failed
twice while Clay was Speaker. There is certainly no
evidence to indicate that he took the slightest pains to
make any extensive additions to the number of standing
But the fact that the list of standing committees be-
came longer during the years of Clay's leadership in the
House is by no means the most important phase of this
particular kind of institutional development. The man
who made the speakership was concerned primarily with
improvements in methods of transacting business, and
it is in this field that Clay made his great contribution.
In particular, at this time, the standing committees were
allowed to take charge of more work, and were given
greater responsibilities. It is this aspect of committee
development, the process by which committees were
gradually woven into the fabric of procedure, that is the
really significant feature of Congressional growth. Re-
duced to its lowest terms, the change consisted in a trans-
fer of important functions from the committee of the
whole to various standing committees.
During the first decade of the federal Congress, im-
portant measures were invariably discussed at length,
and general principles were evolved, in committee of the
whole. Not until those preliminary steps had been taken
might a subject be turned over to a committee to be put
in the form of a bill. Early Congresses were insistent
on that point. Nevertheless the fact that standing com-
mittees were gradually gaining ground at the expense
of the committee of the whole can be observed in pro-
tests against the new procedure. All along there is evi-
dence that the champions of the old order were conscious
of this process of transition, and that they were doing
their best to prevent it. It was not alone in the first
220 DEVELOPMENT OF LAWMAKING
Congress that the Virginians, and others too, for that
matter, were "stiff and touchy" concerning the com-
mittee of the whole. For several years the Republicans
manifested a disinclination to depart from what they
considered the only democratic form of procedure.
In the beginning the committees of the House, both
select and standing, had been used almost entirely in
connection with merely routine work. No power of ini-
tiative was given to them. In 1796, for instance, when the
House was discussing a resolution having for its object
the restriction of the carrying trade to American vessels,
a very logical motion was made to refer the subject to
the committee of commerce and manufactures. Gilbert
said that the House had lately appointed standing com-
mittees for considering certain particular subjects, and
if the proposal under discussion related to any one of
those committees, it ought to be so referred, ''in pur-
suance of the system adopted here for doing business."
''If it were a proposition respecting revenue," he con-
tinued, "it would, without hesitation, be referred to the
Committee of Ways and Means; and if we would uni-
formly pursue the course of transacting the business
lately settled by the House, there would be no hesitation
in referring the proposition, in the first instance, to the
Committee of Commerce." This very sane exposition
of the function of the committees did not accord with the
views of the majority. Madison in particular objected
to the proposed reference, on the ground that all impor-
tant propositions ought to be referred in the first instance
to the committee of the whole, and his view, rather than
the newer one, prevailed.^"
Again in 1802 Lowndes stated that the principle of
the action to be taken with reference to the French
Spoliation Claims ought not to be left to a committee.
20 Annals, 4 Cong. 1, 245-247, 249, January 15, 1796.
STANDING COMMITTEE SYSTEM 221
"That must be decided in the House. It was the duty
of the committee barely to make arrangements to pro-
tect the House from imposition on the score of facts.""
This theory that standing committees must have noth-
ing to do with general principles was again emphasized
in 1806. When the president's message was taken up
in the early part of the session, Nicholson submitted a
resolution to refer that part of it which dealt with the
attitude of belligerent men-of-war toward the United
States to the committee of ways and means, and the sub-
ject was accordingly disposed of in that way.^^ Some
weeks later Smilie said that he could not understand
why such a reference had ever been made. He
thought "it furnished the first instance of a great
national principle being referred to any standing or
select committee of the House. It had always been usual
to refer such principles for settlement, in the first
instance, to a Committee of the Whole on the State of
the Union, to which committee several memorials on the
same subject had been referred." He accordingly
moved that the committee of ways and means be dis-
charged from further consideration of the question, and
that it be referred to the committee of the whole. No
action was taken at the time, but his motion was brought
up again a few days later, and carried.^^ Evidently the
House believed that the attempt to use the committee of
ways and means for the consideration of important ques-
tions was an unwarranted interference with a firmly
established custom. An error had been made in the orig-
inal reference, and the House took pains to make the
21 A7inals, 7 Cong. 1, 1003-1004, March 15, 1802.
22 Ibid., 9 Cong. 1, 258, December 4, 1805.
^znid., 9 Cong. 1, 376, 409, 410, 412.
24 For other statements of this same theory, that general principles were
to be handled in committee of the whole, and that details alone could be
222 DEVELOPMENT OF LAWMAKING
This evidence shows that the committees were simply
fingers of the House, and nothing more, convenient
organs for putting business in shape for consideration
by the committee of the whole. This view still prevailed
as late as 1812. In that year, while speaking of some
petitions concerning the repeal of the Embargo, Calhoun
said that the objects of reference to a committee were
two : to investigate some fact, and to digest and arrange
the details of a complicated subject, "so that the House
may more easily comprehend the whole. This body is
too large for either of these operations, and, therefore,
a reference is had to smaller ones."^'*
In this connection it should be noticed that far from
being customary to refer every bill to its appropriate
standing committee immediately after its introduction,
the practice was absolutely unknown. After due delib-
eration the House might order a committee to draft a
bill, and it might refer the bill back to the same committee
for technical amendments, but bills might, and often did,
go through without being referred to any standing
Subjects, not bills, were referred to committees in the
first instance. These were introduced into Congress by
resolution, by communication from the president or a
head of one of the departments, or by petition. The
normal course was to refer the subject to some commit-
tee, or to the committee of the whole, for a report. This
report when submitted would be discussed in committee
of the whole, and then, after the mind of the House was
fully made up, a committee would be appointed to draft
and bring in a bill in accordance with the specific direc-
tions of the committee of the whole.
left to committees, see Annals, 4 Cong. 2, 1736; 5 Cong. 2, 693-700; 7 Cong.
25 Annals, 12 Cong. 1, 1395-1396.
STANDING COMMITTEE SYSTEM 223
A good example of procedure at the time is to be found
in the action taken on Jefferson's message of December,
1805. He outlined the difficulties under which American
shipping labored, because of aggressive action of Euro-
pean belligerents. The message itself was referred to
the committee of the whole ; the section mentioned above
was then turned over to a select committee. This com-
mittee reported, and on January 23, the report was taken
up in committee of the whole. It appeared that the com-
mittee had recommended the appropriation of a certain
sum for harbor defense, but the committee of the whole
decided that the sum named was wholly inadequate. The
committee of the whole thereupon decided that it needed
more information on the subject, so it appointed a com-
mittee of two to call upon the president, for more light.
On February 28 the discussion was resumed. Finally, on
March 25, the House passed two resolutions : one to
appropriate a sum not to exceed $150,000 for fortifying
the harbors, and the other to appropriate not over
$250,000 to build gunboats. A committee was then
appointed to draft a bill in accordance with these reso-
lutions. On April 15 the committee of the whole began
its debate on the bill to appropriate $150,000 for harbor
The very leisurely course on this measure shows
clearly that the only part played by the committees was
to assist the House in getting ready for actual work. All
really important steps were taken, and all decisions
made, in committee of the whole. The House estab-
lished the principles, while the committees worked out
the details, acting only under specific orders in each
From the nature of the case it was impossible for the
26 Eiehardson, Messages, I, 383-384; Annals, 9 Cong. 1, 258, 377, 378,
381, 391-395, 523, 842-846, 1029.
224 DEVELOPMENT OF LAWMAKING
committee of the whole to keep on in that way. A genu-
ine rush of work would clog the whole system. It is not
surprising then to find evidence that the committee of the
whole was gradually being relieved of some of this detail,
which was in turn passed on to standing committees.
For one thing, during and after Jefferson's first term,
it was customary to refer the various parts of the presi-
dent's message to the appropriate standing committees,
and to defer action on those matters until after the re-
ports were received. Madison's annual message in 1811
was taken up in committee of the whole, according to
custom, but before any debate could take place it was
split into parts and distributed to various committees.
At this particular time John Randolph of Eoanoke urged
that the message itself was important enough to warrant
full discussion in committee of the whole. This prince of
separatists did not deny that the course proposed was
regular enough, but he objected to having the message
''dissected, taken out of the House and put into the
hands of committees," because such action made impos-
sible any discussion of the message as a whole. He was
overruled, and the message went to the committees with-
out further debate.-^
This practice of which Randolph complained would
inevitably result in the assumption of more power by
the standing committees. They were in fact rapidly
ceasing to be mere subdivisions of the House, appointed
to investigate and arrange matters of detail, and were
becoming bodies not of experts exactly, but of special-
ists, each one of which was moderately familiar with
various phases of its particular subject. Formal reports
of such committees would tend to crystallize opinion, and
the House itself might very easily get into the habit of
letting its committees do all the thinking. Randolph felt
27 Annals, 12 Cong. 1, 334-338.
STANDING COMMITTEE SYSTEM 225
that dependence upon them made it altogether too easy
for a few influential members to dictate Congressional
policy on great national issues.
Further evidence of the steadily increasing prestige
and importance of standing committees is to be found
in the granting of full power to report by bill. As long
as their work was confined merely to the investigation
and arrangement of detail, naturally reports could not
be submitted in the form of bills. Even the committee
of ways and means could not report a bill without specific
authorization.-* They gathered material, which had to
be arranged in a general way in committee of the whole.
It was a fixed custom that a committee must not report
a bill until the general principle thereof had been
decided upon in committee of the whole.^^
A debate on this very point was brought on in the fifth
Congress, when one committee asked leave to report by
bill, because its labors would be greatly lightened if it
could put its conclusions in that form. Nicholas
promptly asserted that it was the custom of the House
to have all important business presented in the form of
a simple report, which would afford opportunity for dis-
cussion and reflection. Venable followed, by stating that
'4t was wholly contrary to the practice of the House to
go into details before they had settled the principle upon
which they were about to act." Gallatin also argued
against granting the request on the ground that com-
mittees "never came forward at the beginning of a ses-
sion to ask leave to report by bill." The vote on grant-
ing this request was 45 to 45, and the Speaker cast his
vote in favor of it.^° All this opposition was encountered
after part of the president's message had been referred
28 Annals, 5 Cong. 2, 697.
29 lUd., 4 Cong. 2, 1732-1736.
30 Ihid., 5 Cong. 2, 693-700.
226 DEVELOPMENT OF LAWMAKING
to tlae committee, so that some kind of a report was
As late as 1803 the House went so far as to refuse a
second reading to a bill reported by the committee of
commerce and manufactures, for the sole reason that a
report in that form had not been authorized. After
some discussion the committee was ordered to withdraw
its report." Up to 1815 special permission was always
required before a committee could present its report in
the form of a bill.^^ Li 1815 and thereafter blanket per-
mission to report by bill or otherwise was given to all
standing committees, and to all committees on the presi-
dent's message.^^ This in itself raised the committees to
a position of commanding importance in the House.
By 1819 such marked progress in the acquisition of
power had been made that the committee of ways and
means could venture to report a general appropriation
bill with the blanks filled. For years it had been cus-
tomary for the committee to make its report, naming
the various objects for which appropriations would be
needed, but without stating the specific amounts. These
blanks were invariably filled in after discussion in com-
mittee of the whole. On this occasion Johnson of Vir-
ginia wanted to know what authorization there was for
such an innovation. He thought this new plan extremely
dangerous ; the blanks ought to be filled in by no less an
authority than the committee of the whole. Lowndes,
the chairman who reported the bill, said in reply that
the estimates had been supplied by the various depart-
ments. The committee of ways and means had looked
them over, and made a few changes that seemed desir-
able. Any member, he said, might take exception to any
or all of the items if he thought they were uncalled for
31 Annals, 7 Cong. 2, 313-314.
32 Ihid., 13 Cong. 2, 788-789.
33 JUd., 14 Cong. 1, 377.
STANDING COMMITTEE SYSTEM 227
or extravagant.^* This complaint shows that important
duties were being transferred from the committee of the
whole to standing committees.
By 1816 it is evident that standing committees had
become important enough, if not actually to determine
the policy of the House, at least greatly to influence its
decisions. Speaking on his motion to repeal the direct
tax, Hardin of Kentucky said he approached the subject
with considerable reluctance. To his great regret, he
observed in the House ''an unconquerable indisposition
to alter, change, or modify anything reported by any
one of the Standing Committees of the House. ' "^ Three
weeks later, in discussing a bill reported by the com-
mittee on military affairs, designed to provide for vet-
erans of the War of 1812, Taul objected to the provision
which would reward the officers with gifts of land. And
yet, he said :
' * I confess that I distrust my own judgment when it is differ-
ent from that of any of the standing committees of the House.
The members composing those committees are selected for their
capacity and particular knowledge of the business to be referred
to them. Those selections have been judiciously made. The
standing committees have a double responsibility on them.
Hence it is presumed that every measure, before it is reported
to the House, undergoes a very nice scrutiny. Those committees
have deservedly great weight in the investigation and decision
of such questions as may have come before and been decided on
by them. ' '^^
If more evidence were needed that the standing com-
mittees had taken over the management of all important
business, it might be found in the following indignant
protest. During the debate on a resolution to repeal the
3* Annals, 15 Cong. 2, 468-470.
35 Ihid., 14 Cong. 1, 747, January 24, 1816.
36 /bid., 14 Cong. 1, 989, February 15, 1816.
228 DEVELOPMENT OF LAWMAKING
internal revenue act, Johnson spoke vigorously against
the tendency to delegate legislation to standing com-
"Mr. Speaker," he said, "I am extremely sorry that the
resolution on your table, and those by whom it is supported,
should have experienced such unmerited treatment. How long,
sir, has it been settled, that the rights and the interests of the
American people shall be exclusively confided to the few mem-
bers of this House who compose its standing committees : or,
more peculiarly, to the still smaller number appointed to pre-
side over these committees? Is it presumptuous, or criminal, in
any other member of this body, to submit a proposition, which
he believes calculated to promote the interest, the prosperity, and
the happiness of the nation? Are the laws imposing taxes to
remain fixed and unalterable, except by the will and pleasure
of the Chairman of the Committee of Ways and Means, or by
the will and pleasure of the chairman of some other important
standing committee? Shall no other member dare to propose
the repeal of any revenue law, lest he be denounced as a miser-
able time-serving trimmer, and hunter after popularity ? ' '^'^
Certainly a marked change had taken place in the rela-
tionship between the House and its standing committees
since 1803, when a bill was refused a second reading
because the committee of commerce and manufactures
had not been authorized to submit its report in that form.
John Randolph must have indulged in some bitter re-
flections when he saw committee reports carrying so
much weight that ordinary members hesitated to make
If this development can be attributed to the efforts of
any one man, Henry Clay may be held responsible, or
given the credit for it. His contributions to legislative
procedure were all in the direction of a more effective
37 Annals, 14 Cong. 2, 963, February 17, 1817.
STANDING COMMITTEE SYSTEM 229
organization, the result of which was to speed up opera-
tions in the House. Just as his restrictions on useless
debate relieved the pressure in one direction, so this
transfer of duties and responsibilities from the commit-
tee of the whole to standing committees, and the division
of labor among them, lightened it in another. The prac-
tice of doing everything of importance in the committee
of the whole may have been democratic, but there was
always the danger of aimless drifting. The records of
the eleventh Congress show what actually did happen.
The old system was literally wrecked by a combination
of inefficient leadership and cumbersome procedure. Al-
though it could not guarantee the House against a recur-
rence of the first of these evils, Clay's work did tend
to prevent another such unfortunate combination of the
Among the defects inherent in the committee sys-
tem there was one in particular, apparently unavoidable,
which might at any time occasion troublesome confusion.
It was impossible to delimit the fields of committee juris-
diction so precisely that there would be no overlapping.
As a result the House would sometimes lose itself in a
fruitless debate over the proper reference of a certain
subject, or worse still, two committees might each con-
sider the other responsible for attending to a measure,
and consequently neither would act.
Even in the case of the standing committee of elections,
where there was apparently no room for doubt, some
members could not be made to understand what kind of
business properly lay within its field. In the second
Congress, when a petition alleging certain irregularities
in Wayne's election came up for discussion, Baldwin
moved to refer it to the standing committee of elections.
It was immediately objected that the question "did not
come within their cognizance." The petition was there-
230 DEVELOPMENT OF LAWMAKING
upon laid upon the table for ten days, when it was re-
ferred to a select committee.^*
In 1796, when the House was discussing Smith's reso-
lution, the object of which was to exclude foreign ship-
ping from American carrying trade, members found it
hard to agree whether to refer it to the committee of
commerce and manufactures, the committee of the whole,
or to a select committee.^^
In dealing with the president's speech or message, the
House was often inconsistent in referring its various
parts to committees. For example, in 1797, one section
which clearly belonged to the committee of commerce
and manufactures was referred to a select committee,
and another part regarding finance went to a select com-
mittee instead of the committee of ways and means.*"
In 1798 one section of Adams' speech concerning regu-
lations to prevent the introduction of contagious dis-
eases was referred to the committee of commerce and
manufactures, after the failure of an attempt to give it
to a select committee. Another section which dealt with
certain aspects of the collection of import duties was
referred to the committee of commerce and manufac-
tures, instead of the committee of ways and means.*^
The following instance is perhaps not of the utmost
importance. In 1822 one James Bennett petitioned Con-
gress to pass a special act giving him and his heirs for
forty years **the right of steering flying machines
through that portion of earth's atmosphere which
presses on the United States." The gentleman in ques-
tion had invented a flying machine ''by which a man can
3S Annals, 2 Cong. 1, 175, 210.
39 Ihid., 4 Cong, 1, 245-249. For a similar example of confusion, see
ibid., 4 Cong. 2, 1737-1746.
40 Ibid., 5 Cong. 2, 653-655.
41 Ibid., 5 Cong. 3, 2443. For other examples, see ibid., 2490; 9 Cong. 1,
333, 342-343; 15 Cong. 2, 367-368.
STANDING COMMITTEE SYSTEM 231
fly through the air — can soar to any height — steer in any
direction — can start from any place. ..." Milnor
moved to refer the petition to the committee on the
judiciary. Sergeant, the chairman, objected, on the
ground that the ''committee did not undertake to soar
into regions so high. Their duties were nearer the
earth." Walworth then moved to refer it to the com-
mittee on roads and canals. The House negatived that
proposal, and someone suggested the judiciary again.
Sergeant rose to protest, for the reason "that it was
above their reach," and also ''that they had so much
business before them of a terrestrial character, that they
could not devote their time to philosophical and aerial
investigation." The petition was finally laid on the
Perhaps the best illustration of this difficulty is to be
found in the operations of the committees of ways and
means and of commerce and manufactures. The funda-
mentally important subject of the tariff lay clearly
enough within the fields of both committees, so it is not
surprising that the House was puzzled when it had to
refer matters to them. One committee could not frame
a protective tariff bill without making a rent in the whole
fabric of finance, while the other would naturally let the
needs of the Treasury take precedence over the demands
of manufacturers. At first, before committees were
given free rein in framing bills, the only problem was
that of reference. The first brush between the adher-
ents of the two committees came in 1801, when Smith
moved that the committee of commerce and manufactures
be directed to inquire whether any changes might be made
in the tariff laws. Griswold objected at once, because
the subject dealt with revenue, and he moved to refer the
matter to the committee of ways and means. Smith
42 Annals, 17 Cong. 1, 1361.
232 DEVELOPMENT OF LAWMAKING
insisted that the subject ought to be discussed by ''com-
mercial men, of whom alone the Committee of Commerce
and Manufactures was composed." By taking advan-
tage of their expert advice, the House might learn
whether the duties should be increased or diminished.
Griswold reiterated his argument that the motion con-
templated a revision of the revenue, and therefore be-
longed to the ways and means, ' ' for which purpose alone
that committee was formed." Speaker Macon evaded
the very pretty problem thus presented to him, and ruled
that either reference was ''perfectly in order." Smith's
motion was finally carried."
A similar difficulty was encountered in referring peti-
tions asking for changes in the revenue, or urging fur-
ther protection for manufactures. In the fourteenth
Congress, petitions on such subjects were referred to
both committees, apparently without any attempt at con-
sistency. If any general principle is discernible, it
would appear that petitions involving questions prima-
rily of revenue, and secondarily of protection, were re-
ferred to the committee of ways and means. Others went
to the committee of commerce and manufactures. It is
difficult however to draw any hard and fast line.**
After the committees were given more freedom in
reporting bills, this conflicting jurisdiction at times
43 Annals, 7 Cong. 1, 317-318.
44 Ibid., 14 Cong. 1, the following petitions were referred to the com-
mittee of commerce and manufactures: from makers of cotton cloth, urging
a prohibitive duty on coarse cotton goods, p. 382; from manufacturers in
Massachusetts, asking for legislation to encourage cotton manufacturing
in the United States, p. 392; from woolen manufacturers in Massachusetts
and cotton manufacturers in New Jersey, for the same thing, pp. 392, 395;
several asking for protection on white lead, cotton, etc., pp. 472-473.
The following went to ways and means: from sugar planters in
Louisiana, asking that the war duties on foreign sugar be made permanent;
one asking for a repeal of the tax on manufactured tobacco, and another
asking for the repeal of the direct tax on salt, pp. 458, 472-473, 678.
STANDING COMMITTEE SYSTEM 233
threatened to become serious. There was the possibility
that both committees might undertake the same work,
or that each would try to hold the other responsible, so
that there would be serious friction on the one hand, or
a total neglect of important business on the other.
Under such conditions it would have been the natural
thing for the two committees concerned to get together
outside of Congress, smooth over their differences, and
agree on some common line of action. The curious
thing is nevertheless that in some cases they almost
ignored each other's existence. On April 24, 1820,
Smith, chairman of the committee of ways and means,
submitted his report, in which he gave a general survey
of the financial situation. He announced a probable
deficit for the ensuing year, urged Congress to econo-
mize, and laid before the House a bill providing for a
loan. He made no reference to the tariff, and did not
even hint that any changes might improve the condi-
tions which he described.*^
One week later, Baldwin, chairman of the committee
of manufactures, reported a new tariff bill. In introduc-
ing it, he referred to the embarrassment experienced by
himself and his fellow committeemen in attempting to
deal with a subject which lay partly in the field of another
committee. He had planned at first, he said, to report a
bill dealing with manufactures alone, but the Treasury
was empty, and the committee of ways and means had
declined to recommend any changes in the revenue sys-
tem. Consequently he assumed full responsibility, and
tried to work out a plan that would protect manufac-
turers and replenish the Treasury at the same time. He
realized that in recommending a general revision of the
tariff, he might encroach on fields of other committees,
*s Annals, 16 Cong. 1, 1837-1845.
234 DEVELOPMENT OF LAWMAKING
but if they neglected their duties, they could hardly
blame him for bringing forward badly needed bills.*^
During the years from 1801 to 1820 more work con-
nected with the tariff was done by the committee of manu-
factures than by the committee of ways and means.*'^ In
1821 Monroe's recommendations on the subject of pro-
tection were referred to the committee of manufactures,
in accordance with established custom. In dealing with
this subject, without taking the trouble to find out what
the regular practice was, Professor Burgess jumped at
the conclusion that this reference was a new departure.
His statement, incorrect both in fact and in inference,
runs as follows: "Heretofore this subject had been re-
ferred to the committee of Ways and Means, the regular
revenue-raising committee. Its reference now to the
committee on Manufactures is good evidence that the
House of Representatives regarded a protective tariff
as a subject which Congress might deal with independ-
ently, and without any necessary connection with the
subject of the revenue."** This argument is worthless,
for the simple reason that Congress did not depart from
precedent in this instance.
A curious debate over the tariff of 1824 brings out
some of the consequences of this conflicting jurisdiction.
After the chairman of the committee of manufactures
had reported the new tariff bill, Owen immediately asked
that the committee of ways and means be directed to
examine and report its probable bearing on revenue,
particularly as to whether the proposed measures would
increase or decrease the governmental income. He ad-
mitted that there was ground for criticism in calling
upon that committee, because if a deficiency should arise
46 Annals, 16 Cong. 1, 1916-1918.
*7 For two other examples, see Annals, 8 Cong. 1, 949; 11 Cong. 1,
48 Burgess, The Middle Period, p. 110.
STANDING COMMITTEE SYSTEM 235
from the act of one committee, it, and not another, should
be called upon to make good the loss. ' ' From this opin-
ion, should it be entertained," he said, "I must dissent;
over public revenue and public expenditure, the Com-
mittee of Ways and Means have exclusive jurisdiction;
from that committee, alone, then, can any information
upon these points come officially, and in this shape we
ought to have it." McLane in reply said that he did
not object to the call for information, but he did dis-
approve of the method proposed. Eecourse should be
had to the chairman of the committee who reported the
bill, as he had all the facts at hand, and he must have
figured out the probable effect of the bill. If the ways
and means were called on, they would simply go to the
committee of manufactures for information. The bill
in question was not drawn to raise revenue, but to pro-
tect manufactures, hence it ''appertained wholly to the
Trimble said that if the members really wanted an
opinion of the probable effects of the bill, they ought to
go to the Secretary of the Treasury. He was at the head
of the financial system, and would be able to supply all
desired information. Ingham agreed with Trimble. He
said such information always came from the secretary,
and if the House should apply to the committee of ways
and means, it would have to go to the Treasury for the
facts. Floyd however objected to calling on the secre-
tary for information. He thought it was inconsistent
with the dignity of the House to go for information con-
cerning its duties to one of the president's secretaries.
After forty-two pages of such discussion, the House
finally voted, ninety-six to ninety-two, to table Owen's
resolution.*^ With two different committees and the
49 Annals, 18 Cong. 1, 1587-1629, especially 1586, 1587, 1589, 1614, 1615,
236 DEVELOPMENT OF LAWMAKING
Secretary of the Treasury all trying to take a hand in
directing the revenue system, it is not surprising that
the administration of American finance has been char-
acterized by unbusinesslike confusion, and worse yet by
By 1825 the main outlines of the committee system
were clearly drawn. The House was divided into small
groups, each of which was held responsible for the trans-
action of the greater part of all work relating to some
one particular subject. Even at that time the House
was inclined to pass with little scrutiny bills reported
by important committees. Subsequent development has
consisted chiefly in the working out of details of the sys-
tem, rather than in the establishment of any new prin-
ciples. The important part of legislation was done in
committee rooms rather than in Congress, and as time
went on it became increasingly difficult to bring any busi-
ness before the House until it had been passed upon by
the appropriate committee.
COMMITTEES, CABINET, AND PARTY
From one point of view, the standing committees were
specialized agents of the House ; from another, they were
avenues of communication between the House and the
cabinet. In any discussion of American federal legis-
lative methods, it is necessary to keep constantly in
mind the fact that the different branches of the govern-
ment are separated by the Constitution. While it pre-
vents the possibility of any serious encroachment of the
executive upon the legislature, this barrier has made
necessary the evolution of some means whereby har-
monious and concerted action may be secured. The
caucus had answered the purpose well enough for a time,
but it was an undifferentiated body, not well adapted to
the changed conditions after 1812. The constant pres-
sure of increasing business, along with the steadily grow-
ing prestige of the House itself, demanded the use of
other methods, and the standing committee system
proved to be an excellent medium of intercommunica-
tion. There was a standing committee to correspond to
each one of the important executive departments : Treas-
ury, State, War, Navy, Justice, and the Post Office. The
system was flexible enough to adjust itself automatically
to any shifting of leadership. Whether the master
minds were in the executive or in the legislature, they
could always impress their views on the policy of the
government through the standing committees, because
the current could flow in either direction.
In 1795, when, through Gallatin's efforts, the commit-
238 DEVELOPMENT OF LAWMAKING
tee of ways and means was brought into existence, this
idea of cooperation was not uppermost in his mind. In
fact, if it was not exactly a substitute for the secretary,
that committee was designed to be a check upon him,
rather than an agent for coordinating the financial
operations of the House and the Treasury. Such a con-
dition of separatism could not endure very long. The
Secretary of the Treasury and the committee of ways and
means were too closely bound together by their common
interests, and even in 1796 there is evidence that the two
were beginning to work together.^ By 1797, according to
Fisher Ames, the committee had ceased to act independ-
ently, and was relying implicitly upon the secretary.'^
From the nature of the case there would be few indi-
cations of intimacy between committees and depart-
ments until the committees themselves became important
enough to warrant attention, in other words, until about
the time of Clay's speakership. There is, however, a
little evidence of this cooperation before that time. In
1806 the chairman of the committee, appointed to con-
sider that part of Jefferson's message dealing with har-
bor defense, reported that the committee had conferred
with the Secretary of War on the subject, and that the
secretary had furnished the committee with a general
survey of the condition of the coast defenses, together
with an estimate of the probable cost of needed repairs.'
This statement elicited no particular comment, so such
cooperation must have been taken as a matter of course.
Grallatin had always been ready to give the House
assistance at any time and in any way. After Madison's
election he was temporarily excluded from active leader-
ship, but by 1812 he was again working in concert with
the standing committees, particularly with the committee
1 Annals, 4 Cong. 1, 379-380, 917.
2 Hamilton, Works, VI, 202.
3 Annals, 9 Cong. 1, 380.
COMMITTEES, CABINET, AND PARTY 239
of ways and means. The relationship between them was
close enough to call forth a complaint from Calhoun.
With reference to a certain report submitted by the com-
mittee he remarked: **What, sir, constitutes a feature
in the report still more extraordinary and objectionable,
is the apparent understanding between the Committee
and the Treasury Department. They coyly refuse to
recommend any positive act of legislation, while they
indirectly intimate what they wish and expect the Sec-
retary of the Treasury to do."* Shortly afterward, in
referring to shipping licenses, Grosvenor said that the
bill under discussion was a ' ' Treasury machine, invented
by the able Secretary of that Department. . , . Sir, to
my eye, the hand of the honorable Secretary is apparent
in every part of the machinery." On February 9, Gal-
latin wrote to the chairman of the committee of ways
and means, so Grosvenor said, and recommended a tax
of six dollars per ton on foreign shipping. On February
15, a bill for that purpose was reported. ' ' The honorable
Secretary never speaks to this House in vain. ' '^
As a good Federalist, Webster was inclined to follow
his party in criticising this evident reliance of the com-
mittee upon the secretary. At one time he wrote that the
committee of ways and means had decided to report all
tax bills as they came from the Treasury, and to leave all
discussion on the subject to the House.® After Gallatin
left office his successors maintained this connection, and
there is throughout evidence of intimacy between the
Treasury and the committee of ways and means.
During the War of 1812, Monroe, acting Secretary of
War, was constantly consulting with the House com-
mittee on military affairs. At the very beginning the
committee called upon him, to get information regarding
* Annals, 12 Cong. 2, 315-317.
lUd., 12 Cong. 2, 1139-1140.
6 Webster, Letters, p. 37 (Van Tyne ed.).
240 DEVELOPMENT OF LAWMAKING
the number of troops to be raised/ In the next session
Monroe wrote that he had received letters from the mili-
tary committees of both houses, with reference to the
organization of the regular army, and of the volunteers,
in which he was requested to give advice as to needed
additions. Monroe sent in a long report, and also sup-
plied the committee with an outline of the plan of cam-
paign for 1813.^ To the Columbian Centinel such inter-
course savored of tyranny. ''The truth is, Mr. Secre-
tary Monroe has informed them that the war requires
that the Standing Army should be augmented to FIFTY
THOUSAND men," and that the bounty for enlistment
ought to be increased. ''The Committee are about to
register the edict. . . . '"
Congress depended upon Monroe to furnish the neces-
sary bills for increasing the army. In 1814 Webster
wrote that the conscription bill was before the House.
"The bill is drawn principally on Mr. Monroe's first
plan. Of course we shall oppose such usurpation all we
Naturally the committee of foreign affairs maintained
close relations with the executive. It had collaborated
with the Secretary of War in working out a plan of de-
fense in 1811." Then the bill for the sixty days embargo
that preceded the declaration of war was prepared by
the committee of foreign relations, with the able assist-
ance of Albert Gallatin. The procedure in that instance
was significant. Madison sent in a special message, rec-
ommending the embargo, and the message was referred
to the committee of foreign relations. After a brief
interval. Porter, the chairman, reported a bill, which had
7 Monroe, Correspondence, V, 206-207.
9 Col. Cent., December 30, 1812.
10 Webster, Private Correspondence, I, 245-246.
11 Col. Cent., December 7, 21, 1811; January 4, 1812.
COMMITTEES, CABINET, AND PARTY 241
apparently been prepared before the message was re-
ceived. Porter himself said that the bill was ' ' draughted
according to the wishes and directions of the Secretary
of the Treasury. "^^
When the House and the cabinet were on terms of
political friendship, the committee of foreign relations,
or at least its chairman, was on very intimate terms with
the Secretary of State. ''The Chairman of the Com-
mittee of Foreign Relations has always been considered
as a member in the confidence of the Executive," wrote
John Quincy Adams, "and Mr. Forsyth acted thus at
the last session. The President has hitherto considered
him as perfectly confidential, and directed me to commu-
nicate freely to him the documents concerning foreign
affairs, particularly those with Spain, which I have
done. ' '" It was customary for the chairman to call upon
the Secretary of State at the opening of a session, to find
out whether or not there would be any measures regard-
ing foreign affairs which would require legislative action.
Then there would follow a general conversation about
important questions pertaining to the work of the de-
partment." In some cases the Secretary of State would
give the chairman of this committee important state
papers, on the express condition that they would not be
laid before Congress. The two men went over the whole
field of foreign relations very thoroughly, and the chair-
man was in the habit of giving the secretary a resume
of his report before he submitted it to Congress.^^
More than that, the chairman of the committee of for-
eign relations was in the position practically of an ex
12 Annals, 12 Cong. 1 (Suppl. Journal), 1587-1588. John Eandolph
subsequently spoke of it as: "The embargo, engendered from a fortuitous
concourse between the Executive and the Committee of Foreign Rela-
tions. ..." Ibid., 12 Cong. 1, 1385.
13 J. Q. Adams, Memoirs, IV, 65.
i^Ibid., IV, 183-184.
i^IMd., IV, 210.
242 DEVELOPMENT OF LAWMAKING
officio member of the cabinet. Adams reported one
instance when Monroe asked him to notify the members
of the cabinet to meet the next day to discuss the Florida
question. According to the president, ''it had been here-
tofore customary for the Committee of Foreign Rela-
tions to act in concert with the Executive, and to show
their reports before making them. He thought they
ought to do so now." At the ensuing cabinet meeting
Holmes, the chairman, was present, and gave the cabi-
net an outline of his proposed report.^®
Adams' numerous comments make it evident that for
a part of Monroe's first term, the committee of foreign
relations was little more than the legislative agent of
the department of State. Certainly the relationship was
so intimate that there was little friction. Such a con-
nection naturally suffered when Clay began his assaults
upon the administration. In 1819 Adams wished to have
a commission appointed to adjust the Florida boundary.
He made known his desire to Holmes, chairman of this
committee, and Holmes in turn laid the proposal before
the House. He moved to amend the bill which provided
for the occupation of Florida by adding clauses author-
izing the appointment of such a commission, and the
appropriation of the amount needed to defray the ex-
penses of the members. Holmes expressly stated that
he proposed the amendment because it had been asked
for by the Secretary of State, who considered it desir-
able, and not because the committee thought it was essen-
tial. In reply to a query by Clay, Holmes admitted that
Adams had made suggestions with reference to the
amount of the appropriation. Much to Adams ' displeas-
ure, the amendment was not carried."
His defeat on this measure marked the end of his influ-
16 J. Q. Adams, Memoirs, IV, 212-214.
■i-T Annals, 15 Cong. 2, 1428-1430; J. Q. Adams, Memoirs, IV, 281.
COMMITTEES, CABINET, AND PARTY 243
ence with the committee of foreign relations. In Decem-
ber, 1819, John Randolph was placed on the committee,
and henceforth confidential intercourse between secre-
tary and committee practically ceased. Communica-
tions of importance could no longer be laid before the
committee in secret, because Randolph would be sure to
report the whole proceeding to the House.^^ When Mon-
roe wished to furnish Lowndes, the new chairman, with
some papers which could not be made public, Lowndes
preferred not to see them, because he could not make any
allusions to his special information without giving rise
to harmful suspicions." On one subsequent occasion
Adams made the blunder of laying before the committee
the documents concerning his negotiations with France.
*'It had always been considered as a practical rule," he
wrote, ''that the Committee of Foreign Relations should
be the confidential medium of communication between the
Administration and Congress. The Speaker had now
appointed a committee entirely new, of members chiefly
known to be hostile to the Administration, with a Chair-
man generally understood to be at personal variance with
me. To this committee all the papers relating to a com-
plicated and delicate pending negotiation with France
are confidentially committed, and the next day one of
the members of the committee offers a resolution calling
for them all."'"
Adams also referred to relations between other com-
mittees and the cabinet. ''Now, Crawford," he wrote,
"is constantly boasting that he draws up bills for
committees, who present them exactly as he draws
them."*^ At one cabinet meeting the draft of a bill by
Newton, chairman of the committee of commerce, was
18 J. Q. Adams, Memoirs, IV, 478.
19 Ibid., IV, 505-506.
20 Ibid., V, 474-476.
21 Ibid., IV, 281.
244 DEVELOPMENT OF LAWMAKING
examined and discussed. Various amendments were
proposed, and Crawford was asked to write a new section
to take the place of the third in Newton's bill.-^ Again,
Southard, the Secretary of the Navy, showed Adams the
draft of a bill which he planned to have laid before the
House by the chairman of the committee on naval affairs,
the object of which was to establish a naval school.^^
Although this direct connection between committees
and cabinet was taken as a matter of course, it was not
considered proper for a committee chairman to negotiate
directly with the president. Adams said that "Dis-
cussion between the President and committees of either
House of Congress can never be proper, and are never
sought but by Chairmen of committees disaffected to the
Executive. ' '"*
Before these habits of cooperation had become regular,
members were accustomed to profess more or less
horror when cabinet officials made recommendations
to the House. As a result of several years of such
intercommunication, through the medium of caucus or
standing committee, the House not only expected the
secretaries to make suggestions regarding necessary
legislation, but even looked with suspicion at important
measures which were not so recommended. When the
bill for chartering a new bank was brought forward in
1814, Grosvenor took exception to the manner of its
introduction. He believed it was unconstitutional to
charter a bank except to accomplish national objects,
and to facihtate the handling of the revenue. "As to
those objects, however," he said, "it was the consti-
tutional duty of the Secretary of the Treasury to devise
the ways and means, and if such an institution were
necessary for the purposes of Government, it was the
22 J. Q. Adams, Memoirs, IV, 504, 509.
23 Ihid., VII, 90-91 ; also V, 131-132.
24 IMd., VI, 267.
COMMITTEES, CABINET, AND PARTY 245
duty of that officer to recommend it. He wished the
Secretary to say whether such a bank was necessary,
and not that the subject should be referred to a com-
mittee of this House, and they to inquire privately of
the Secretary as to the expediency of the measure.
When the proposition came in at the proper Constitu-
tional door, and appeared to be necessary . . . ," he
would not object. ' * If such a necessity exists, he wished
the Government to come forward and declare it, and
not shrink from the responsibility of recommending the
measure.'"^ Oakley said that he did not believe "it was
so exclusively the duty of the Executive Department to
recommend the establishment of a National Bank. . . ."
Even though the measure did not come in at the proper
door, that was no reason for condemning it.-" Gaston
agreed with Grosvenor, and expressed his ''entire dis-
approbation of the indirect introduction of Executive
recommendations into the House, as producing legis-
lation without intelligence, and action without respon-
sibility. ..." He would not vote against a measure
simply because the executive had not recommended it
openly, but he would have been better pleased ''if the
measure had been directly recommended by the Execu-
tive. . . ."^^ To ward off criticism of that kind, Dallas,
the new Secretary of the Treasury, recommended the
incorporation of a bank in his next annual report.^*
Referring to the bill which was introduced in accordance
with that suggestion, Ingersoll said, "The Treasury
Department, in concert, and after long consideration
with the Committee of Ways and Means, assuming the
responsibility of their respective stations, have recom-
mended to us the plan of a bank which is comprehended
25 A7inals, 13 Cong. 2, 1942.
28 Ibid., 13 Cong. 2, 1943.
27 Ihid., 13 Cong. 2, 1945.
28 iMd., 13 Cong. 3, 403.
246 DEVELOPMENT OF LAWMAKING
in the bill under discussion.'"' The bank bill that was
finally passed was framed by a select committee of which
Calhoun was chairman, but the committee merely
followed the plan laid before them by Dallas. When
the bill was under discussion in Congress, Calhoun was
constantly in touch with the Secretary of the Treasury.
This conviction in the House that "government bills
ought to be recommended by the proper executive
authority was emphasized in still another way. On the
very day when Grosvenor was objecting to the method
of the introduction of the bank bill, Wilson submitted
some resolutions, urging that the committee on military
affairs be instructed to inquire into the expediency of
providing by law for opening and improving military
roads. Under ordinary conditions, he said, it might be
expected that the War department would be aware of
the need, if it existed, and would call the attention of
Congress to the subject. At that time, however, the
Secretary of War was too busy to attend to such matters.
But his department would have general oversight of the
work, and it was proper to refer the question to the
committee on military affairs, because it was ''more
conversant with the channels of information to be
derived from the military department, and in the daily
practice of receiving it, which must be supposed to afford
a facility in their inquiries which another committee
might not so conveniently possess.'"^ Two years later,
when it seemed desirable to make certain changes in the
organization of the War department, and of the militia,
Congress called upon the Secretary of War to furnish
the necessary bills. In compliance with that request the
bills were laid before the House early the next session.^^
29 Annals, 13 Cong. 3, 604.
80 Ibid., 14 Cong. 1, 494-514, 1229-1233.
31 IMd., 13 Cong. 2, 1935-1936.
^2lUd., 14 Cong, 1, 1408-1409; 14 Cong. 2, 270-275.
COMMITTEES, CABINET, AND PARTY 247
There were some members who thought that this
cooperation between the two branches of the government
would in time make the House nothing but a mere
auxiliary of the executive. Hardin complained that the
manner in which legislative business was carried on
*' destroyed the freedom of legislation altogether. The
President signified his will to the Heads of Depart-
ments — they made their annual report to the House,
recommending the adoption of certain measures; it was
pretty well understood that what they recommended was
the will of the Executive; the reports of the Heads of
Departments were referred to the standing committees,
a majority of whom were followers of the Executive;
they kept in secret conclave for a month or two, until
the House became all anxiety, and solicitude was on tip-
toe. Each day an inquiry would be made when they
would report? Not ready yet, would be the answer.
The members of the committee looked grave, pensive,
and melancholy, as if oppressed with a mighty weight
of thought. At last they would burst upon the House
with their report ; and what was it when made ? A mere
echo, a mere response to Executive will, with small and
immaterial variations, intended for the purpose of
inducing the House to believe that they had matured the
subject well, when, perhaps, they had never thought
about it; pre-determined, from the first, to re-echo back
in substance Presidential will ; and when the report thus
made finds its way into the House, it is fixed. Right or
wrong, it must not be altered. Each member of the
committee adheres to it, each hanger-on supports it, and
all, as the poet says, 'who live and never think' support
The standing committee system is often criticised on
the ground that it tends to scatter the energies of the
33 Annals, 14 Cong. 1, 747-748, January 24, 1816.
248 DEVELOPMENT OF LAWMAKING
House, and to prevent the fixing of definite respon-
sibility. Even though this censure is justifiable, it is
difficult to conceive of any other arrangement which
would have fitted in so well with the peculiar conditions
in the House of Representatives. Institutions are merely
mechanical devices which come into existence to meet
some peculiar want, the organs to perform certain
definite functions. As the federal government gradually
learned how to operate, the House was compelled to
evolve a system which would satisfactorily solve, not
one or two, but three problems. It was not enough that
the committees should attend to routine work in Con-
gress, and in addition serve as avenues of communication
between cabinet and legislature. It will be recalled that
in order to enact their measures, the Federalists, and
after them the Jeffersonians, were compelled to band
their forces together in a kind of extra-Congressional
organization, through which the party could exert its
strength. Those in touch with the government knew that
legislation was carried on, not by Congress as such, but
by the inner circle of majority leaders. Now the com-
mittee of the whole had been of necessity relieved of
some of its important duties, because of the increasing
amount of work. If division of labor was necessary in
Congress, it was equally desirable in the party. The
caucus was not discarded by any means, but it could be
left free to deal with the more general aspects of party
interests, because the standing committees might safely
be charged with much of the detail. Consequently, these
committees became in a way the specialized agents of
the majority, just as they were of the House, and of the
executive. As a result, the three indispensable factors
in the government: executive, legislature, and political
party, were provided with a number of common deputies,
by means of which the different forces at work could be
COMMITTEES, CABINET, AND PARTY 249
united in a single common channel. When executive and
legislature were actuated by a desire to work together,
this system made possible the proper correlation of these
three factors, the avoidance of a duplication of labor, and
the elimination of waste energy.
Party control of the committees was assured through
the method of appointment. Almost from the beginning
the Speaker was empowered to select the committees,^*
and by the time standing committees had become at all
important, the Speaker himself was chosen in party
caucus. Just how early this practice became regular is
not known; probably very soon after party lines were
drawn. With reference to the choice of Speaker, Miss
Follett states "that although some concerted action must
always have been necessary to produce a majority result,
caucuses as we know them did not appear until towards
the middle of the century. "^^ Inasmuch as caucuses
were to all intents and purposes electing the president
of the United States long before the middle of the cen-
tury, and differed from those as we know them only
perhaps in being more influential, the statement just
quoted is not particularly illuminating. As a matter of
fact there are occasional newspaper references to show
that the speakership did come within the range of caucus
deliberations even in the early days. ** Among the
extraordinaries of the day," ran an item in the Colum-
bian Centinel of December 7, 1799, "may be ranked the
caucussing of the Jacobins at Philadelphia, in favor of
Mr. Rutledge, of South Carolina, as Speaker, in oppo-
34 In the first session of the first Congress, the Speaker appointed small
committees, but the House chose all those of more than three members by
ballot. Journal House of Heps., 1 Cong. 1, 6. In the second session the
Speaker appointed all the committees, unless the House directed otherwise;
Journal, 1 Cong. 2, 140. In the second Congress the Speaker was authorized
to appoint committees until the House should see fit to make other arrange-
ments. Annals, 2 Cong. 1, 142.
35 Follett, Speaker of the House, p. 40.
250 DEVELOPMENT OF LAWMAKING
sition to Mr. Sedgwick, because the latter is a northern
man. ..." Again in 1814, the same paper mentioned
the election of Cheves to succeed Clay, who had resigned
to go to Ghent. Cheves was elected, in spite of the fact
that his opponent, Grundy, "was not only the caucus but
the white-house candidate."^" After Clay's attack on
the Monroe administration, there was apparently a
caucus held to consider a possible successor for him.
Monroe told Adams that several members had come to
ask him ''whether it would be advisable to displace Clay
as Speaker." The President advised against it, ''be-
cause it would be giving Mr. Clay more consequence than
belongs to him."^^ These references make it fairly
evident that the Speaker was elected by a party caucus.
As early as 1797, too, there is evidence that party
considerations were becoming an important factor in the
selection of committees.^* Then, in 1802, John Ran-
dolph, at that time one of the most conspicuous of the
Republican leaders, was chairman of so many different
committees that he could not attend to them all.^® This
in itself is an illuminating commentary on party prac-
tices in those days. By 1813 standing committees were
avowedly made up in the interests of the dominant party.
Webster wrote that in the appointments for that session
"A Federal name is now & then put in, to save appear-
ances. "*° The next year King complained that on the
committee of ways and means New England had no
representation, while the middle, southern, and western
states were represented. ' ' It may have been an accident,
or he (the speaker) may only have followed the bad
example of some bad predecessor," he said. Even on
36 Col. Cent, January 26, 1814.
37 J. Q. Adams, Memoirs, IV, 471.
38 "South Carolina Federalists," Am. Hist. Bev., XIV, 786,
39 Annals, 7 Cong, 1, 478.
40 Webster, Letters, p, 34 (Van Tyne ed.).
COMMITTEES, CABINET, AND PARTY 251
the least important committees there was a majority
against New England."
In 1820 Adams charged that in appointing the com-
mittee of foreign relations. Clay ''selected that one with
a view to prevent anything 's being done congenial to the
views of the Administration."*^ John Randolph's pres-
ence on the committee that year would in itself prove
that Adams was telling the truth.
Whether the composition of committees was actually
decided in caucus or not made little difference. The
Speaker was the caucus nominee, and even Henry Clay
could not take the risk of antagonizing his fellow mem-
bers in the House. In 1827 it appears that the appoint-
ment of the standing committees was delayed in order
that the caucus might have time to decide on the
It was very seldom that disaffected members made any
attempt to alter the method of committee appointment.
In 1806 John Randolph's action in holding back, or
refusing to make a report for the committee of ways and
means, led to a movement in favor of appointment by
ballot. In offering a resolution, the aim of which was
to take the appointing power away from the Speaker,
Sloan said, "I offer these resolutions for the purpose
hereafter of keeping the business of the House of Repre-
sentatives within its own power, and to prevent in future
the most important business of the nation from being
retarded by a chairman of the Committee of Ways and
Means, or of any other committee, from going to Balti-
more or elsewhere," and staying six days, and also to
"prevent in future the chairman of the Committee of
41 Annals, 13 Cong. 3, 444-445, 449.
42 J. Q. Adams, Memoirs, IV, 507.
*s Ibid., VII, 373-374, 377: "It is understood that the appointment of
the committees in the House by the new Speaker is to be settled by the
leaders of the party."
252 DEVELOPMENT OF LAWMAKING
"Ways and Means from keeping for months the estimates
for the appropriations necessary for the ensuing year
in his pocket, or locked up in his desk, whereby the
different appropriation bills may be kept back (as they
have been this session) to the great injury of the
nation. . . . Resolved, That hereafter all standing com-
mittees of the House of Representatives shall be ap-
pointed by ballot, and shall choose their own chairmen. ' '**
Nothing was done at the time, but a vote was taken on
the subject early the next session. By an extremely
narrow margin the Speaker was permitted to keep his
power of appointment.*^
A similar attempt was made in the tenth Congress.
Blount said that in order to relieve the Speaker of a
very unpleasant duty, it would be desirable to have the
committees named by ballot, so he made a resolution to
that effect. He thought the proposed method would be
''most satisfactory to the House and to the Speaker
also." Smilie defended the regular practice. The ballot
method had been resorted to occasionally, he said, and
it had proved to be unsatisfactory. The Speaker was
well qualified to do the appointing. In naming com-
mittees, he argued, ''it was proper to select the most
fit characters for each — on the Committee of Commerce
and Manufactures, for instance, there ought to be placed
commercial men ; on the Committee of Ways and Means,
ii: Annals, 9 Cong. 1, 1114-1115.
45j&id., 9 Cong. 2, 111. In his Life of Macon, pp. 208-209, Professor
Dodd states that the northern Eepublicans feared Eandolph's reappoint-
ment as chairman of the committee of ways and means, and to prevent it
they tried to take the appointing power away from the Speaker. The
greatest of all northern Eepublicans, however, Albert Gallatin, was extremely
anxious to have Eandolph continued as chairman of the ways and means
committee. On October 30, 1807, Gallatin wrote as follows to his wife:
' ' Varnum has, much against my wishes, removed Eandolph from the Ways
and Means and appointed Campbell, of Tennessee. It was improper as
related to the public business, and will give me additional labor. ' ' Adams,
Gallatin, p. 363.
COMMITTEES, CABINET, AND PARTY 253
such as were best acquainted with the subjects of finance,
etc., whereas in committees appointed by ballot, it will
depend on accident whether fit persons be appointed or
not. Besides, in such elections there is no responsibility ;
the contrary is the case when the Speaker selects the
members of a committee. He is responsible for the
choice he makes, and will therefore exercise great pre-
caution in it."*^ In the eleventh, and again in the
thirteenth Congress, similar attempts were made, bul
in both cases they were voted down.*' It was evident
that clear-headed party leaders did not propose to trust
to luck in making up the committees, nor did they care
to let the committees get beyond their control.
In view of the increased importance of the Speaker
it would have been natural for the president to take a
keen interest in the choice of that official. There is,
however, little evidence to show that he attempted to
dictate the selection. Perhaps before Clay's time there
was little need for attention to that detail. It is signifi-
cant that what evidence there is on this point is to be
found after Clay had attempted to assume the direction
of both the foreign and the domestic policy of the
government. In 1821 some members of the administra-
tion had a few conferences with Taylor, one of the
candidates for the office. Taylor was ready to promise
to support the executive in return for whatever assist-
ance they might give in securing the election for him.
Adams was not unwilling to throw the weight of the
influence of the administration in Taylor's favor, but
Monroe determined to let the House solve its own prob-
lems, and Adams promised to take no more part in the
After Adams was elected he did not follow Monroe's
4^ Annals, 10 Cong. 1, 789-792; Blount's motion was lost, 24-87.
^"^ Hid., 11 Cong. 1, 58; 13 Cong. 1, 157, ways and means only.
48 J, Q. Adams, Memoirs, V, 428, 431-432, 434-439.
254 DEVELOPMENT OF LAWMAKING
example of non-interference in contests over the speaker-
ship. In the spring of 1825, Webster assured the new
president not only that he would not run against Taylor,
but that he would give him his active support. Adams
took pains to have Webster reminded of this promise
when Congress convened. Before the House selected its
presiding officer, Adams and Taylor talked over the
composition of the committees in the event of the latter 's
election. The president and his candidate concluded that
although they could not displace those who had been
chairmen in the last Congress, they might very well
''arrange the members so that justice may be done as far
as practicable to the administration."*®
By 1825, as the result of fairly steady development,
certain institutions, the caucus, the standing committee
system, and the speakership, had become firmly estab-
lished in the House of Representatives. These can be
dissected out from the main body, so to speak, and
described accurately enough, each by itself. Such
analysis is necessary, but it does not go far enough. The
really significant thing, in addition to finding out the
true nature of these institutions, is to see how they were
related to each other, and how each contributed to the
process of legislation. Then, because the president and
his cabinet played a more or less important part in
Congressional affairs, their connection with legislative
institutions must also be taken into account. Statutes
are the finished product of the combined activities of
all these separate factors. Unfortunately for purposes
of exposition, the relative influence of the several forces
varied so greatly from time to time that snapshots of
them all at work in different years would present very
dissimilar results. President, cabinet. Congressional
49 J. Q. Adams, Memoirs, VII, 68-70; Taylor was chosen on the second
COMMITTEES, CABINET, AND PARTY 255
leaders of the party organization, or the Speaker, might
and did have the whip hand at different times. It is
particularly difficult to describe accurately the relation-
ship from 1811 to 1825, the very years when the standing
committee system and the powerful speakership were
developing, because it was a time of party disintegration.
The balance of power was generally in the House, but
members of the cabinet enjoyed no insignificant influence
in legislative affairs, while Clay, one of the greatest
Speakers, was at first, in 1818, decisively beaten on his
favorite South American policy.^"
The development of the speakership and the committee
system was contemporaneous with the throwing off of
that comprehensive executive domination which had
characterized the Jeffersonian epoch. But the opera-
tion of these institutions in the House did nothing to
strengthen and make permanent those habits of greater
legislative freedom which were in evidence up to 1829.
That the standing committee system did not make the
House independent of an active executive can be seen
from a glance at legislative history under various presi-
dents, from Andrew Jackson to Woodrow Wilson. As
it is, and as it has been for a hundred years, the
organization of the House permits the application of
powerful executive pressure, and in fact the wheels
of the government have never run more smoothly
than when the president has been in a position to
drive Congress. When party lines are tightly drawn,
and when executive and legislature are politically
friendly, the committee system works well, because
under such conditions there is cooperation and respon-
sible leadership. At other times the division of the
House into fifty or more committees tends to prevent
the enactment of any carefully prepared legislative
^0 Annals, 15 Cong. 1, 1646; Clay's motion was lost, pp. 45-115.
256 DEVELOPMENT OF LAWMAKING
program. The system is essentially a practical, not an
ideal, solution of governmental problems, for which the
Constitution must be held responsible. Before it can be
changed very much the organic law must provide for a
more definite connection between executive and legis-
lature, and in addition must take into account the
important position of the political party.
The sources upon which this work is based are, for
the most part, of three different kinds : legislative jour-
nals, correspondence, and newspapers. For the federal
House of Representatives, the reports of debates, gen-
erally cited as the Annals of Congress, have been used
extensively. The footnotes are numerous enough to show
what material has yielded the most information.
Those portions of the study which deal with the
regular standing committees are based primarily on the
official minutes of the various legislative bodies, and
on the Annals. These records show what new standing
committees were created at various times, what kind of
work was assigned to them, and what gradual changes
occurred in the relations between committee and assem-
bly. Beyond that point these sources do not go, and it is
almost impossible to supplement them with evidence
gleaned elsewhere, because newspapers and collections
of correspondence are generally silent on the subject of
standing committees. These records are with some few
exceptions available in printed form.
With reference to those informal committees, the
agents of the political party, the official records contain
nothing at all. The Journals would never lead one even
to suspect the existence of such institutions as the
''Junto" or the caucus, and the Annals of Congress are
almost as silent. For information about this kind of
legislative machinery, which in some ways is far more
important than the ordinary committees, recourse must
be had to correspondence, diaries, and the newspapers.
By the proper synthesis of these various kinds of
258 DEVELOPMENT OF LAWMAKING
material a fairly complete account of legislative growth
can be obtained.
Secondary works are useful for their discussion of the
political situations which have at various times exerted
an influence on legislative organization, but beyond this
very important service of supplying a background they
are not very helpful. They contain only a little informa-
tion regarding the party organization in the legislature,
and none at all regarding the development of the
LISTS OF STANDING COMMITTEES
(1) On Petitions regard-
ing the Sale of Land.
(1) Privileges and Elec-
tions. Grand Committees
on: (1) Grievances. (2)
Courts of Justice. (3) Trade.
(1) Finance. (2) En-
couragement of Arts, Agri-
culture, and Manufactures.
(3) Incorporation of Towns,
and Town Affairs. (4) Ac-
counts. (5) New Trials.
(6) Abatement of Taxes.
(7) Petitions regarding the
Sale of Real Estate. (8) Nat-
uralization of Aliens.
(1) Ways and Means.
(2) Grievances. (3) Courts
of Justice. (4) Privileges
DEVELOPMENT OF LAWMAKING
(1) Grievances and Courts
of Justice. (2) Accounts.
(3) Privileges and Elections.
(1) Religion. (2) Privi-
leges and Elections. (3)
Propositions and Grievances.
(4) Courts of Justice. (5)
Claims. (6) Trade.
(1) Accounts. (2) Claims.
(3) Propositions and Griev-
ances. (4) Privileges and
(1) Grievances. (2) Privi-
leges and Elections.
(1) Ways and Means.
(2) Claims. (3) Accounts.
(1) Grievances and Courts
of Justice. (2) Privileges
and Elections. (3) Claims.
(4) Trade and Manufactures.
(1) Religion. (2) Privi-
leges and Elections. (3)
Propositions and Grievances.
(4) Courts of Justice. (5)
Claims. (6) Commerce.
(1) PuUic Bills. (2) Fi-
nance. (3) Privileges and
Elections. (4) Propositions
and Grievances. (5) Claims.
(6) Indian Affairs.
(1) Grievances. (2) Privi-
leges and Elections. (3) Re-
ligion. (4) Ways and Means,
(1) Privileges and Elec-
tions. (2) Religion. (3)
Ways and Means. (4) Ac-
counts. (5) Courts of Jus-
tice. (6) Public Roads,
Bridges, Causeways, and
(1) Grievances. (2) Privi- (1) Privileges and Elee-
leges and Elections. tions. (2) Accounts. (3)
Petitions. (Three commit-
tees, referred to as Commit-
tee on Petitions No. 1, 2, and
Adams, Henry, 180, 186.
Adams, John, 30, 156, 159, 215.
Adams, John Quiney, 175, 241, 242,
243, 251, 253, 254.
Adams, Samuel, 25, 26, 27, 29, 30,
31, 33, 35.
Alien and Sedition Acts, 162.
Ames, Fisher, 123, 124, 136, 137,
146, 147, 158, 161, 238.
Anti-Federalists, see Eepublicans.
Assembly, of New York, committees,
7, 8, 17; influence of Parliament,
9; political parties, 50, 52; law-
yers in, 52-53.
Assumption of State Debts, 24, 142,
Appropriations, in Massachusetts,
72; in New York, 96.
Auditing Committees, 216.
Aurora, the, 152.
Baldwin, Abraham, 229, 233.
Barbour, Philip P., 218.
Bassett, Burwell, 195.
Bayard, James A., 185, 187.
Bennett, James, 230.
Benson, Egbert, 132.
Bernard, Sir Francis, 25, 27, 29, 33,
34, 39, 40.
Bills, in colonial legislature, 16, 21,
77; in Congress, 222, 226.
Bland, Theodoric, 143.
Bonus Bill, 206.
Boston, Caucus Club, 30; town meet-
ing, 30, 31, 33; British troops, 34.
Boudinot, Elias, 131.
Bowdoin, James, 29.
Bowers, Jerathmeal, 25, 33.
Budget, colonial, 69-70.
Burgess, Prof. John W., cited, 234,
Burr, Aaron, 185.
Butler, Andrew P., 137.
Cabinet, in England, compared with
"Junto," 59-60; growth of, 116-
Cabinet, tendency toward, in colo-
nies, 59, 84-90.
Cabinet, in United States, Federal-
ist idea of, 145 ; relations with
Congress, 146; members desire to
attend House, 149; under Jeffer-
son, 179, 208; under Madison, 198,
208; relations with standing com-
mittees, 237; influence on legis-
Calhoun, John C, 199, 222, 239, 246.
Calhoun's bonus bill, 206.
Campbell, George W., 183.
Caucus, in Congress, 144; work, 168,
195, 204; origin, 184; in election
of 1800, 185; nominates speaker,
187, 249, 250; nominates vice-
president, 187; description of,
188; Quiney 's account of, 189;
nominates president, 200-201 ;
friction in, 202; changes in, 206;
relation to executive and to Con-
gress, 237; relation to standing
committees, 248; names commit-
Caucus Club, in Boston, 30.
Cheves, Langdon, 250.
Cincinnati, Order of the, 143.
Circular Letter, of Massachusetts,
Clay, Henry, speaker, 199; urges
war in 1812, 200; influence in
House, 207; House leader, 208;
reorganizes House, 210; contri-
bution to standing committee sys-
tem, 215, 216, 218, 219, 228, 251;
improves procedure, 219; attack
on administration, 242; South
American policy, 255.
Clinton, DeWitt, 170.
Clinton, George, 50, 51.
Clymer, George, 143.
Golden, Cadwallader, 51-52,
Colonial agent, 55.
Colonial government, nature of, 58;
theory and practice, 61-62.
Cohimbian Centinel, the, 187, 204,
Committees, origin, 3; in House of
Commons, 5; in New York, 7-9;
in Virginia, 10-17; in New Eng-
land, 19-21; in Massachusetts, 20;
in colonial legislatures, 21; in
North Carolina, 55-56; in New
Hampshire, 65; in Massachusetts,
66; development of, 66-67, 76-78;
procedure, 104, 110; appointment,
in House of Commons, 105-106;
in colonies, 106-108; chairmen,
109; clerks, 109; hearings, 111;
meetings, 112, 113, 115; rooms,
112-113; in House of Eepresen-
tatives, 129, 157, 160; Gallatin
attends, 183; early history, 208,
211, 213; growth, 210, 214; ob-
jections to, 211 et seq.; attitude
of Federalists, 213; work, 217,
220-222; early importance, 222;
increasing importance, 224, 227,
228, 236, 247; reports, 225 et
seq.; Clay's influence, 228; de-
fects in system, 229; conflicting
jurisdiction of, 229 et seq.; rela-
tion to House, executive, and
caucus, 237; relation to president.
244, 247; relation to party or-
ganization, 248; appointment of,
249; party control of, 250, 251.
Committee on Accounts, 67-68; in
Massachusetts, 68; in New Jersey,
68 ; in North Carolina, 18 ; in Con-
Committee on Agriculture, 216.
Committee on Claims, in North Caro-
lina, 18; in Virginia, 11-12; in
Congress, 157, 214.
Committee on Commerce and Manu-
factures, 157, 212, 214, 220, 226,
"Committee of Convention," in
Boston, 34, 36.
Committee of Correspondence, 18.
Committee on Courts of Justice, in
New York, 7; in Virginia, 11, 16.
Committee on the District of Co-
lumbia, 215, 217-218.
Committee on Elections, 129, 214,
Committee on Foreign Eelations,
200, 215-216, 240, 241-242.
Committee on Grievances, in New
York, 7; in other colonies, 17.
Committee on Indian Affairs, 215-
Committee on the Judiciary, 216,
Committee on Legislation, 80-84; in
Georgia, 80; in Massachusetts, 84;
in New Hampshire, 80, 81, 84; in
Pennsylvania, 80, 81, 84; in South
Carolina, 80, 84.
Committee on Manufactures, 216,
Committee on MUitary Affairs, 215-
Committee on Naval Affairs, 215.
Committee on Pensions and Eevolu-
tionary Claims, 216.
Committee on Post OflSces and Post
Committee on Private Land Claims,
Committee on Privileges and Elec-
tions, 11, 15, 18.
Committee on Propositions and
Grievances, 11, 14.
Committee on Public Bills, in North
Carolina, 77, 80, 84-91 ; compared
with Cabinet, 80, 89, 90, 118; re-
ports, 87-88; work, 86-89, 102.
Committee on Public Claims, 11.
Committee on Public Expenditures,
Committee on Public Lands, 213,
Committee on Eeligion, 11, 12.
Committee of Eevisal and Unfinished
Committee on Eoads and Canals, 231.
Committee on Trade, in New York,
7; in Virginia, 11, 15; general,
Committee of War, 21.
Committee of Ways and Means,
origin, 70; in Congress, 129, 130,
157, 160, 172, 211, 214, 226, 231,
235, 238, 245; in Massachusetts,
70 et seq.; in North Carolina, 75;
in Pennsylvania, 74; in South
Committee of the Whole, in House
of Commons, 92; procedure, 94,
96; in Congress, 127, 128, 153,
219; in the Carolinas, 94; in
Georgia, 93, 97; in Massachusetts,
97; in New England, 93; in New
Hampshire, 92, 100; in New York,
93, 94, 96, 101; in North Caro-
lina, 94; in Pennsylvania, 94, 97;
in South Carolina, 94 ; in Virginia,
93, 95-97, 98-102.
Congress, procedure, 22; early his-
tory, 120-121; first committees,
129, 142; under Eepublicans, 154,
156; under Federalists, 162-163;
lack of leadership, 169; party
alignment, 175; executive in-
fluence, 175; Quincy's description,
189; Jefferson's influence, 191;
rejects executive control, 195;
confusion in, 197; twelfth Con-
gress, 199; eleventh Congress,
210; see also Caucus, Committee,
Hamilton, Jefferson, Madison.
Congressional government, influence
of Virginia, 103.
Connecticut, committees in, 19, 78.
Constitutions, 61, 62, 63, 88-89, 120,
Council, in Massachusetts, 28, 29.
Crawford, William H., 243.
Cushing, Thomas, 25, 26, 33, 35.
Customs Commissioners, American
Board of, in Boston, 34.
Dallas, Alexander G., 170, 245.
Debates, in Massachusetts, opened to
D'Ewes, Simonds, 106.
Dexter, Samuel, 25, 33.
Dinwiddle, Eobert, 42, 43.
District of Columbia, Committee on,
215, 217, 218.
Dobbs, Arthur, 44, 54-55.
Duane, William J., 174, 188.
Election of 1766, in Massachusetts,
Election of 1800, 178.
Embargo, the, 178, 195.
Eppes, John W., 195.
FaneuU Hall, 35.
Federal Convention, 90, 103, 120,
Federalist Party, 131, 140, 144, 147,
148, 150-151, 162, 163, 167, 173.
Finance, 1, 51, 53, 69, 71, 74, 95,
148-150, 153-156, 160-161, 182,
riudlay, William, 150.
Fitzsimons, Thomas, 129.
Floor leader, 176, 192; see also
Giles, Nicholas, Nicholson, Ean-
Florida, 172, 175, 178, 242.
Flying machine, 230.
Follett, M. P., Miss, quoted, 249.
Foster, Sir Augustus J., 201.
Francis' Hotel, 181.
Gage, Thomas, 36, 41.
Gallatin, Albert, 133, 156, 163, 181,
182, 196-199, 214, 225, 238, 240.
Gaston, William, 245.
Gerry, Elbridge, 129.
Georgia, legislature, 45-46; com-
mittees, 78, 107; committee of the
Giles, William B., 152, 158, 167-169,
Goodhue, Benjamin, 139.
Goodrich, Chauncey, 159-161.
Governor, colonial, 58-59,
Grand committees, 4, 7-8.
Gray, Thomas, 26.
Grosvenor, Thomas P., 239, 244, 246.
Grundy, Felix, 200.
Hamilton, Alexander, 24, 122, 130,
133, 134, 140-142, 145, 148, 152,
154, 176, 211.
Hancock, John, 25, 33, 34, 35.
Hanson, Alexander, 202.
Hardin, Benjamin, 227, 247.
Hawkins, Benjamin, 109.
Hawley, Joseph, 25, 33.
Henry, Patrick, 102, 137.
Holmes, Isaac E., 242.
Hooper, Samuel, 109.
House of Burgesses, committees, 3,
5; compared with the House of
Commons, 10 ; attendance, 13 ;
committees, 13; procedure, 16-17;
relations with the governor, 42-
45; committees, 45.
House of Commons, compared with
colonial legislature, 1; with House
of Eepresentatives, 3 ; committees,
3-5; committee appointment, 105-
106; committee meetings, 115.
House of Delegates, 102.
House of Eepresentatives, in Massa-
chusetts; influence of House of
Commons, 6; compared with
House of Burgesses, 19; political
parties in, 25, 31; importance of
Boston in, 31 ; debates opened to
public, 32; impeachment in, 37-
39 ; politics in, 40 ; relation with
English government, 41.
House of Eepresentatives, federal;
compared with House of Commons,
3, 116; first meeting, 122; or-
ganization, 122; personnel, 122;
description of, 125, 139; pro-
cedure, 126; committee of the
whole, 127 ; Eepublican theories,
158; increase in power, 196;
place in government, 200; manage-
ment of, 203; Clay's influence in,
207; organization, 248; escapes
from executive control, 255.
Huger, Daniel, 143.
Humphreys, David, 143.
Hutchinson, Thomas, 28, 29, 32, 37,
Indian Affairs, committee on, 215,
IngersoU, Charles, 245.
Instructions to Eepresentatives, 30,
Jackson, James, 141, 143.
Jackson, John G., 195.
Jackson, Andrew, 255,
Jameson, J. Franklin, History of
Standing Committees, cited, 3.
Jay Treaty, 158, 186.
Jefferson, Thomas, 135, 140, 144,
162, 165, 166, 169, 173-180, 188,
191, 192, 194.
Jeffersonian System, 205.
Johnson, Eiehard M., 228.
"Junto," the, in colonial legisla-
tures, 24; in Massachusetts, 25-
28, 33-35, 37, 39, 42, 47-48; in
Virginia, 44; power of, 49; in
New York, 50-53; in North Caro-
lina, 53-56; conditions responsible
for, 56 et seq. ; compared with
Cabinet, 59; development of, 59;
attitude toward, 60; effect on
colonial government, 62; not
recognized in constitutions, 62;
effect of Eevolution on, 79; de-
cline, 79-80; compared with Cabi-
net, 80, 83, 90, 117-118; see also
King, Rufus, 204, 250.
Knox, Henry, 135.
Lawyers, in New York Assembly,
Lee, Joseph, 26.
Legislature, colonial, growth of, 1 ;
structure, 2 ; work, 2 ; uniformity,
6; influences upon, 6-7; compared
with House of Commons, 9;
growth, 9 ; select committees, 21 ;
bills, 21-22; relation with execu-
tive, 49, 56-58; leaders, 57-58.
Legislature, state, size, 63 ; condi-
tions in, 63-64; problems, 64.
Liberty, the, 34.
Livermore, Samuel, 129, 211.
Louisiana, Purchase, 170; govern-
Lowndes, William, 199, 220, 226,
Maelay, Edward, 141, 142, 143.
Macon, Nathaniel, 177, 181, 232,
Macon's Bill Number 1, 197.
Madison, James, 90, 123, 126, 132,
134, 140, 144, 154, 180, 193-201,
206, 207, 220.
Marshall, John, 166.
Martin, Josiah, 56.
Maryland, committees, 17, 76, 78,
107, 109, 111; speaker, 107.
Mason, George, 115, 169.
Massachusetts, committees, 19 ;
speaker, 25, 106; "Junto," the,
25-42 ; instructions to representa-
tives, 30-31 ; Circular Letter, 33,
36; Provincial Congress, 36, 41;
royal salaries, 37; Superior Court,
37-39; politics, 39; governor and
legislature, 39-41 ; relations with
England, 41 ; committees, 47-48,
65-66, 68, 70-78, 80-81, 84, 97, 106,
108; see also House of Represen-
Mercer, John F., 149.
Monroe, James, 133, 155, 177, 239-
Muhlenberg, Frederick A. C, 123.
National Bank, 142, 197, 244.
New England, 6.
New Hampshire, committees, 19, 65,
78, 80-81, 84, 100, 106; procedure,
New Jersey, 17, 68, 78, 106.
Newton, Thomas, 243.
New York, committees, 6, 7; Assem-
bly, 50-51; lawyers, 52-53; pro-
cedure, 77; committee of the
whole, 93, 94, 96, 101; committee
Nicholas, Wilson C, 163, 173, 176,
181, 182, 196, 225.
Nicholson, Joseph, 178, 181, 182,
Non-Intercourse Act, 195.
North Carolina, committees, 17, 18,
75, 77, 106, 108, 109; politics, 53
et seq.; speaker, 54-55; legislature,
56; Cabinet government, approach
toward, 80, 89, 90, 118; Constitu-
tion, 88-89; committee of the
whole, 94; procedure, 102; Pro-
vincial Congress, 114.
Oakley, Thomas, 245.
Oliver, Andrew, 28, 29.
Oliver, Peter, 38.
Otis, Harrison Gray, 104.
Otis, James, 25, 27, 29, 33, 35.
Page, John, 131, 153, 212.
Paper money, 69.
Partridge, Oliver, 25.
Party organization, in colonial legis-
latures, 3, 22-24, 39, 49, 57, 121;
see "Junto"; in Congress, 135-
137, 139-140, 143-144, 192, 248,
250; see Caucus.
Pennsylvania, committees, 74, 77, 80,
81, 84, 107, 111; committee of
the whole, 94, 97.
Person, Thomas, 109.
Petitions, 14, 19, 64, 135, 153.
Pickering, Timothy, 175, 178, 179,
Politics, see "Junto," and Party
President's Message, 215, 223-224,
President's Speech, 230.
Privileges, in House of Commons,
4; of committee witnesses, 112.
Procedure, influence of colonial leg-
islatures on House of Eepresenta-
tives, 22; in House of Represen-
tatives, 126, 219, 222-223.
Provincial Congress, in Massachu-
setts, 36, 41 ; in North Carolina,
Qurncy, Josiah, 189, 208.
Randolph, Edmund, 108.
Randolph, John, 168, 169, 171, 172,
176, 181, 182, 188, 192, 197-198,
224, 243, 251.
Randolph, Peyton, 43.
Reform Bill, of 1832, 5.
Republican Party, 137, 140, 147-176,
181-183, 196, 201-206.
Revenue Bills, 130.
Revolution, the, 60, 61, 79.
Rhode Island, 19, 21, 78.
Robinson, John, 43, 45.
Rodney, Cssar A., 170, 176.
Rutledge, Edward, 187.
Secession, urged by Pickering, 191.
Sedgwick, Theodore, 139, 148, 187.
Seven Years' War, 21.
Sheaffe, Edward, 25, 26, 33.
Shirley, William, 1.
Smilie, John, 221.
Smith, Robert, 196.
Sons of Liberty, 28.
Southard, Samuel L., 244.
Southern Colonies, 6.
South Carolina, 75, 77, 78, 80, 84,
Speaker, in House of Commons,
106; in federal House of Repre-
sentatives, 105, 123, 126, 168, 176,
177, 187, 189, 192, 207, 225, 243,
249, 252, 253; in New York, 51;
in North Carolina, 54 ; in Virginia,
Specific Appropriations, 213.
State Department, 130, 134, 241.
Stamp Act, 27.
Starkey, John, 53.
Steering Committee, 82.
Superior Court, in Massachusetts,
Swann, Samuel, 54-55.
Taggart, Samuel, 200.
Tariff, 127, 231, 234.
Taylor, John W., 253.
Townshend Acts, 33.
Tucker, George, 131.
Treasury Department, 129, 130, 132-
134, 143, 149, 151, 152, 156, 176,
182, 183, 211, 235, 238, 239, 244-
Varnum, Joseph B., 177.
Venable, Abraham, 225.
Vining, John, 143.
Virginia, committees, 6, 11-15, 45,
76, 78, 107-108, 109-111; reli-
gious difficulties, 12; governor, 42-
45; procedure, 77; committee of
the whole, 93, 95, 98-101; speaker,
War Department, 130, 134, 238-240,
War Hawks, 199.
War of 1812, 200.
Washington Federalist, the, 168,
Washington, George, 148.
Wayne, Anthony, 229.
Webster, Daniel, 201, 203, 239, 240,
Whig Party, in Massachusetts, 26,
29, 33, 36, 39.
Wolcott, Oliver, 161.
X. Y. Z. Affair, 184.
Yazoo Land Claims, 172.
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